THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 

Eldredge 


THE  MICHIGAN  LAW 


OF 


WITH 


FORMS  OF  PROCEDURE 

CONFORMING  TO  THE  MICHIGAN 

JUDICATURE  ACT 


BY 

JAMES  M.  POWERS 

in 

OF   THE 
BATTLE  CREEK  BAR 


I'll  7 

DETROIT 

FRED'S.  DRAKK 


Copyrighted,  1917 
By  JAMES  M.  POWERS 

T 


PREFACE. 

The  object  in  writing  ihis  book  h;is  IMMMI  to  gather  under  one 
heading  all  tin*  la\\.  procedure  ami  forms  of  this  jurisdiction 
relating  to  the  subject  »»f  marriage  and  divorce  and  to  supple- 
ment, by  decisions  in  foreign  jurisdictions,  such  points  as  have 
not  IMMMI  determined  by  our  Supreme  Court.  Upon  questions 
relating  to  conflict  of  laws  it  has  been  deemed  advisable  to 
add  the  decisions  of  the  various  stales,  and,  in  some  of  their 
more  important  phases,  a  brief  review  of  the  laws  of  such 
slates  and  of  oilier  countries  in  their  comparative  relation  to 
our  o\vn. 

It  is  the  increased  litigation  concerning  the  marriage  rela- 
tions and  particularly  matters  of  divorce,  together  with  the 
iieml  of  me  courts  to  follow  the  decisions  of  their  own  juris- 
diction, that  has  made  such  a  treatise  necessary.  The  subject 
is  so  important,  and  some  of  the  questions  so  complicated  and 
difficult,  that  it  is  only  in  this  form  that  such  questions  can  be 
discussed  and  solved. 

My  gratitude  is  due  .Mr.  Ilm-ace  G.  Williams  of  the  Detroit 
liar  for  his  valuable  suggestions  and  criticisms. 

With  the  sincere  hope  that  it  will  be  of  interest  and  value 
to  the  profession,  this  work  is  respectfully  submitted  to  the 
bench  and  bar. 

Battle  ('reek.  .June  1.-1JH7.    . 

JAMES  M.  POWERS. 


TA'IM.i:  <>F  CONTENTS. 

PART  ONE. 
MARRIAGE  AND  ITS  SOLEMNIZATION. 

CHAITKi;   I. 

INTRODUCTION. 

§1.  Definition. 

§2.  Monogamy. 

§3.  Primitive  Marriage  —  Polygamy. 

§4.  Primitive  Ceremonies  of  Marriage. 

§5.  Marriage  a  Contract. 

§6.  Government  Control  Over  Marriage. 

§7.  Mode  of  Constituting  Marriage  in  England. 

§8.  Mode  of  Constituting  Marriage  in  Scotland. 

$9.  Mode  of  Constituting  Marriage  in  the  United  States. 

§10.  Consent  the  Essence  of  a  Valid  Marriage. 

§11.  Marriage  Ceremonies. 

§12.  Jurisdiction  in  Matrimonial  Causes*. 

§13.  Property   Rights  of  Husband  and  Wife. 

CHAPTER  II. 

rnNTUCT  OF   LAWS    KKLATIXd   TO   MAK'KI  AUK    AM> 

DIVQBCE. 

§14.  Foreign  Marriages. 

§15.  Marriages  against  Public  Policy  and  Morality. 

§16.  Incestuous  and  Polygamous  Marriages. 

§17.  Incestuous  Marriages.  —  Void  or  Voidable. 

§18.  Who  May  Ask  for  Annulment  of  Voidable  Marriage. 

§19.  Marriage  After  Divorce  Granted. 

§20.  Marriage  During  Prohibited   Period. 

821.  Protection  of  Injured   Party  and  Offspring  of  Illegal  Marriage. 

§22.  Modern  Legislation. 

§23.  Conflict  of  Divorce  Laws. 

§24.  Full  Faith  and  Credit  Clause  of  the  Federal  Constitution. 

§25.  <  Effect  Same  as  in  State  where  Judgment  is  Rendered. 

§26.  Written  Laws  of  Foreign  Countries.  —  How  Proven. 

rilAITRR  III. 


VALIDITY  OF   FOKKICN    IHYOK<'K   AS    I»KI'K\hKNT 

.irmsmrTioN  OVKI;  DKFKNDANT. 


§27.     Scope  of  Subject  Discussed. 

§28.     Domicile  of  Both  Parties  in  State  of  Forum. 


VI  TABLE    OF    CONTENTS 

§29.     Domicile  of  Neither  Party  in  State  of  Forum. 

§30.     Domicile  of  One  Party  in   State   of  Forum. — Personal   Service 

on  Other  Party. 

§31.     Same. — Constructive  or  Substituted  Service  on  Other  Party. 
§32.     Effect  on  Property  Rights  when  Decree  Granted  on  Constructive 

Service. 

§33.     Right  to  Alimony. 

§34.     Custody  of  Minor  Children. — Remarriage  of  Defendant. 
§35.     Limited  Recognition. — Interstate  Comity. 
§36.     Nonrecognition  where  no  Personal  Service  is  Had. 
§37.     Same. — Pennsylvania  Rule. 
§38.     Same.-^South  Carolina  Rule. 
§39.     Rule  in  Federal  Courts. — Atherton  v.  Atherton  and  Haddock  T. 

Haddock.  •  * 

CHAPTEE  IV. 

DEFINITION  AND  NATURE  OF  MARRIAGE  CONTRACT. 

§40.  Definition. 

§41.  Nature  of  Marriage  Contract. 

§42.  Who  Capable  of  Contracting  Marriage. 

§43.  Statutory  Definition. 

§44.  Prohibited  Degrees  of  Consanguinity  and  Affinity. 

§45.  Legal  Impediments — Spouse  Living. 

CHAPTER  V. 

'  SOLEMNIZATION  OF  MARRIAGE. 

§46.  Same — Competency  of  Parties. 

§47.  Who  may  Solemnize  Marriage. 

§48.  One  of  the  Parties  to  be  Examined  under  Oath. 

§49.  No  Particular  Form  of  Ceremony  Required. 

§50.  Common  Law  Marriages. 

§51.  Punishment  for  Unauthorized  Marriages. 

§52.  Want  of  Authority  of  Magistrate  or  Clergyman. 

«§53.     Denominational  Rites. 

/  .  • 

-CHAPTER  VI. 

PROOF  OF  MARRIAGE. 

§54.  Certificates  and  Licenses  as  Evidence. 

§55.  Record  of  Marriages  Continued. 

§56.  Duty   of  County  Clerk. 

§57.  Marriage  Licenses. 

§58.  Affidavit  of  Party  Applying  for  License. 

§59.  Duties  of  County  Clerk. 

§60.  Duty  of  Magistrate  or  Clergyman. 

§61.  Penalties  for  Violation. 

§62.  Record  as  Evidence. 


TAMI.K    o|     OiNTKVlS  Ml 

$63.  Marriages  to  Protect  Reputation. 

$64.  Application  For  a  License; — Form  of  Application. 

§66  Judge  of  Probate  to  File  Papers; — Inspection  of  Record. 

§66.  Privilege — Penalties   for    Divulging   or   Publishing,    Etc. 

CHAPTER  VII. 

PRESUMPTIONS. 

|67.  Presumptions  of  Validity  of  Marriage.  • 

$68.  Conflicting  Presumptions. 

$69.  Conflict  of  Laws. 

$70.  Indian  Customs. 

$71.  Incestuous  and  Polygamous  Marriages. 

$72.  Marriages— When  Void. 

$73.  Marriage  More  than  a  Civil  Contract. 

$74.  Purpose  of  Statutory  Definition. 

$75.  Voidable  Marriages. 

$76.  Who  May  Annul  Voidable  Marriages. 

$77.  Who  May  Annul  Marriage  for  Fraud  or  Duress. 


PART  TWO. 

RIGHTS,  DUTIES  AND  OBLIGATIONS  OF  HUSBAND 
AND  WIFE. 

CHAPTER  VIII. 

STATUTORY  PROVISIONS. 

$78.  Introduction. 

$79.  Mutual  Property  Rights  of  Husband  and  Wife. 

$80.  Married  Women's  Act. 

$81.  Trustee  for  Married  Woman  May  Convey  to  Her. 

$82.  Actions  by  and  against  Married  Women. 

$83.  Husband    not  Liable   for   Wife's   Contract   in   Relation   to   her 

Separate  Property. 

$84.  Antenuptial  Contracts. 

$85.  Wife  May  Insure  Life  of  Husband. 

$86.  Right  of  Married  Woman  to  Earnings. 

CHAPTER  IX. 

PROPERTY  RIGHTS  OF  HUSBAND  AND  WIFi:. 

$87.  Mutual  Property  Rights. 

$88.  Deed  of  Land  Owned  by  Wife. 

$89.  Land  Held  Jointly  by  Husband  and  Wife. 

$90.  Same  Subject  Continued. 


Vlll  TA15LE    OF    CONTENTS 

§91.     Doctrine  of  Survivorship  Does  not  Apply  to  Personal  Property. 

§92.     Same  Subject   Continued. 

§93.     Effect  of  Divorce  on  Title  to  Land  Held  by  Husband  and  Wife. 

CHAPTER  X. 

CURTESY,   DOWER   AND  ASSIGNMENTS. 

$94.  Husband's  Rights  i\i  Land  of  Deceased  Wife. 

§95.  Dower. 

§96.  Dower  in  Case  of  Lands  Exchanged. 

§97.  Right  of  Alien  or  Non-Resident  to  Dower. 

$98.  Dower  in  Land  Mortgaged. 

§99.  Widow's  Interest  in  Surplus  after  Sale  on  Mortgage  Foreclosure. 

§100.  Dower  when  Heir  Pays  the  Mortgage. 

§101.  Estimating  Dower  in  Land  Aliened  by  Hus"band. 

§102.  Dower  May  be  Assigned  by  Probate  Court. — When. 

§103.  How  Dower  Assigned  by  Probate  Court. 

§104.  Proceedings  and  Commissioner's  Oath. 

§105.  Dower  in  Land  not  Severable. 

§106.  Widow  may  Occupy  with   Heirs  if  they  do  not  Object. 

CHAPTER  XI. 
BARRING  DOWER  AND  ELECTION. 

§107.  Methods  of  Barring  Dower  by   Wife  or  Widow. 

§108.  Dower  Barred  by  Antenuptial  Jointure. 

§109.  How  Assent  Expressed. 

§110.  Antenuptial  Settlement. 

§111.  Election  in  Case  of  Jointure  or  Pecuniary  Provisions. 

§112.  Election  in  Case  of  Provision  by  Will  of  Husband. 

§113.  Election. — What  Constitutes. 

§114.  New  Assignment  if  Widow  Lawfully  Evicted. 

§115.  Rights  of  Dower  of  Non-Residents  and  Aliens. 

CHAPTER  XII. 
RIGHTS,   DUTIES   AND   OBLIGATIONS   OF   DOWRESS. 

§116.  Repairs,  Waste,  etc. 

§117.  Widow's  Right  to  Remain  in  Dwelling-House  and  Have  Support. 

§118.  Damages  for  Withholding  Dower. 

§119.  Measure  of  Damages  for  Withholding  Dower. 

§120.  No  Damages  Estimated  on  Improvements. 

§121.  Damages  when  Heir  Has  Aliened  the  Land. 

§122.  Assignment  of  Dower  as  Bar. 

§123.  Collusive  Recovery  of  Dower  as  against  Infant  Heirs. 

CHAPTER  XIII. 
BARRING  DOWER  OF  INSANE  PERSONS  AND  MINORS. 

§124.     Insane,  Imbecile,  Idiotic  and  Minor  Married  Women. 
§125.     Proceedings— Contents  of  Petition. 


rxr.i.i:  <>!••  CONTKNTS  ITS. 

Order  and  Notice  of   Hearing. 

$127.  Proceedings: — Appearance  and  Answer. 

$128.  Guardian's  Sale  of  Wife's  Interest. 

$129.  Disposition  of  Fund. 

§130.  Barring  Minor's  Dower.  '  „ 

§131.  Award  of  Money  in  Lieu  of  Dower. 

$132.  Dower  Claimed  by  Two  or  More  Widows. 

rilAITKK  XIV. 

HO.MKSTKAh   K'HJHTS  (>F  YVIFK  nil   \VIhOW. 

8133.  Constitution. 

8134.  What  Constitutes  Homestead. 

8135.  Object  of  Exemption. 

8136.  Land  Purchased  for  Homestead; — Intention. 

8137.  Title  in  Fee  not  Necessary. 

8138.  Homestead    in    Land    Held    in    Joint    Tenancy    or    Tenancy    m 

Common. 

$139.     Homestead  Rights  as  against  Mechanic's  Lien. 
$140.     Alienation  of  Homestead. 
$141.     Abandonment  of  Homestead.1 

$142.     Homestead  Exemption  to  Family  after  Death  of  Husband. 
8143.     Homestead    Rights'  of   Widow    when    Owner    Dies    Leaving    no 

Children. 

THAI-TICK  XV. 

STATKTOIJY    PROVISIONS    IN    RELATION   TO   HOME 
STKAh  liHJIITS. 

$144.  In  General. 

$145.  Statutory  Definitions  and   Exemptions. 

$146.  Mortgage  Lawfully  Obtained. 

8147.  Selection  of  Homestead  when  Levy  of  Execution  is  Made. 

8148.  When  Officer  to  Make  Survey. 

8149.  How  Sale  Made  after  Survey. 

8150.  House  on  Land  of  Another: — Not  Exempt  from  Sale  for  Taxes. 

8151.  Appraisal    and   Notice   when    Homestead   Exceeds  Fifteen .  Hun- 

dred Dollars  in  Value. 
8152.'    How  Homestead  Advertised  and  Sold  for  Surplus. 

rilAITKi;  XVI. 

SAl.i:   OK    HO.MKSTKAh   OK    hKCKASKh    PKI.'SONS. 

8153.  By  Probate  Court  to  Pay  Debts  or  Expenses. 

8154.  Court  to  Fix  Location  and  Description. 

8155.  Appraisal  and  Report. 

8156.  Confirmation   of  Report.     New  Appraisal. 

8157.  Proceedings  on  Confirmation  of  Report. 


<< 

X  TABLE   OF    CONTENTS 

CHAPTER  XVII. 

CONTRACTS  OF  MARRIED  WOMEN. 

5158.  At  Common  Law. 

§159.  Constitutional  Provisions. 

§160.  Statutory  Provisions. 

|161.  General  Effect  of  the  Statute. 

§162.  Purpose  of  the  Statute. 

§163.  Executory  Contracts  of  Married  Women.    ' 

§164.  Same  Subject  Continued. 

§165.  Same  Subject  Continued. 

§166.  Authority  of  Husband  as  Agent  of  Wife. 

§167.  Rights  of  Husband's  Creditors  as  against  the  Wife. 

§168.  Improvements  and  Materials  Furnished  to  Husband  to  be  Used 
on  Land  of  Wife. 

§169.  Necessaries  and   Family   Expenses. 

§170.  Necessaries    and    Family    Expenses — Contract    for    Nursing. 

§171.  Married  Woman's  Subscription  Contract  for  Public  Improve- 
ments. 

§172.  Contract  of  Married  Women  Jointly  with  Husband. 

§173.  Debts  Incurred  by  Married  Woman  in  her  Separate  Business. 

§174.  Debts  Contracted  on  Credit  of  Wife's  Separate  Estate. 

§175.  Contracts  for  Benefit  of  Wife's  Separate  Estate. 

CHAPTER  XVIII. 

CONVEYANCES  AND   CONTRACTS  TO   CONVEY  REAL 
ESTATE   OR   PERSONAL   PROPERTY. 

§176.  Statutory  Provisions. 

§177.  Consideration. 

§178.  Joinder  of  Husband. 

§179.  What  Law  Governs. 

§180.  Gift  by  Wife  to  Husband. 

§181.  Covenants  on  the  Part  of  a  Married  Woman. 

§182.  Consent  of  Husband  to  Sale  of  Wife's  Property. 

§183.  Same  Subject  Continued. 

§184.  Conveyance  of  Husband  or  Wife  to  or  for  Each  Other. 

§185.  Conveyance  of  Undivided  OnejHalf  Interest  by  Husband  to  Wife. 

§186.  Conveyance  of  Land  Held  by  Husband  and  Wife  by  Entirety. 

CHAPTER  XIX. 

ACTIONS. 

§187.  Statutory  Provisions. 

§188.  Rights  of  Action  between  Husband  and  Wife. 

§189.  Action    by   a   Married    Woman    against    a   Firm    of   which    her 

Husband  is  a  Member. 

§190.  Actions  by  Wife  against  Husband. 

§191.  Actions  for  Torts. 

§192.  Action  by  Wife  for  Services. 


TABLE    01      -  i>vn:\  n 

|193.  Action  by  Wife  for  Alienation  of  Husband's  Affections. 

8194.  Same  Subject:—  Michigan  Statute. 

|195.  Same  Subject  Continued. 

§196.  Actions  by  Husband  for  Alienation  of  Wife's  Affection. 

§197.  Evidence  in  Action  for  Alienation  of  Affections. 


PART  THREE. 
DIVORCE. 

CHAl'TKIJ  XX. 

INTROnrCTION. 

$198.  General  Views. 

S199.  Local  Legislation. 

8200.  Divorce  Tribunals. 

8201.  Legislation  on  the  Subjects  of  Marriage  and  Divorce. 

8202.  Legislative  Divorces. 

8203.  Same  Subject  Continued. 
5204.  Judicial  Divorce. 

8205.  Limited  Divorce. 

8206.  Moral  Effects  of  Limited  Divorce. 

8207.  Marriages  Void  without  Divorce. 

8208.  Consent  Obtained  by  Force  or  Fraud. 

8209.  Decrees  Annulling  or  Affirming  Marriages. 

CHAPTER  XXI. 

IHVOlM'i;  LAWS  OF  I  AFFERENT  COUNTRIKS 

§210.  General  Observations. 

$211.  Divorce  Laws  of  British   Empire. 

$212.  Divorce  Laws  of  Canada. 

8213.  Divorce  Laws  of  the  United  States. 

8214.  Jurisdiction  Governed  by  Domicile. 

8215.  Place  of  Marriage  not  Controlling. 

8216.  What  Constitutes  Domicile. 

8217.  Domicile  by  Operation  of  Law. 

8218.  Domicile  for  Purpose  of  Divorce. 

8219.  Change  of  Domicile. 
§220.  Proof  of  Domicile. 

$221.     Temporary  Absence  as  Affecting  Domicile. 

CHAPTER   XXII. 


(  AI  si:s  Ai-mom/iNi;  DIVORCE  AND  THE  PRO- 

CEIM'IiK    IN    IHKFKKKNT   STATES. 

§222.     Courts   without   Power   to  Grant   Divorce  except    by   Statutory 

Authority. 
|223.     Alabama. 
§224.     Alaska. 


XI 1  TABLE    OF    CONTEXTS 

§225.  Arizona. 

§226.  Arkansas. 

§227.  California. 

§228.  Colorado. 

§229.  Connecticut. 

§230.  Delaware. 

§231.  District  of  Columbia. 

§232.  Florida. 

§233.  Georgia. 

§234.  Guam. 

§235.  Hawaii  Territory. 

§236.  Idaho. 

§237.  Illinois. 

§238.  Indiana. 

§239.  Iowa. 

§240.  Kansas. 

§241.  Kentucky. 

§242.  Louisiana. 

§243.  Maine. 

§244.  Maryland. 

§245.  Massachusetts. 

§246.  Michigan. 

§247.  Minnesota. 

§248.  Mississippi. 

§249.  Missouri. 

§250.  Montana. 

§251.  Nebraska. 

§252.  Nevada. 

§253.  New  Hampshire. 

§254.  New  Jersey. 

§255.  New  Mexico. 

§256.  New  York. 

§257.  North  Carolina. 

§258.  North  Dakota. 

§259.  Ohio. 

§260.  Oklahoma. 

§261.  Oregon. 

§262.  Pennsylvania. 

§263.  Porto  Rico. 

§264.  Rhode  Island. 

§265.  South  Carolina. 

§266.  South    Dakota. 

§267.  Tennessee. 

§268.  Texas. 

§269.  Utah. 

§270.  Vermont. 

§271.  Virginia. 

§272.  Washington. 

§273.  West  Virginia. 

§274.  Wisconsin. 

§275.  Wyoming. 


TAMl.i:    OF    roXTKXTS  \\\\ 

rilAITKH  XXIII. 

DIVORCI-:  AM*  ANNTLMKNT  OF  MARRIAGE  IN 
MICHIGAN. 

§276.  Jurisdiction. 

$277.  Marriages  Void  without  Divorce:    Legitimacy  of  Issue. 

8278.  Marriages  Procured  by  Force  or  Fraud. 

5J279.  Actions  to  Annul  Void  Marriage. 

8280.  Sufficiency  of  Evidence. 

8281.  Actions  to  Affirm  Marriage. 

§282.     Sentence  to  Imprisonment  for  Life. 

CHAITKK  XXIV. 
CAUSIOS  FOK  I>IYOK<M:  FIIOAI  BONDS  OF  MATRIMONY. 

§283.  Adultery. 

8284'.  Bill  of  Complaint. 

8285.  Disposition  and  Opportunity. 

§286.  Professional  Calls. 

'  8287.  Facts  from  which  Adultery  may  be  Inferred. 

8288.  Facts  not  Sufficient  to  Establish  Adultery. 

8289.  "Character  of  Witnesses  to  Prove  Adultery. — Particeps  Criminis. 

— Prostitutes  and  Procurers. — Detectives. 
§290.     Prostitutes  and   Procurers. — Detectives. 

CHAI'TKR  XXV. 
CAl'SKS   FOR   ABSOU'TK    DIVORCE:   CONTIM'KK 

*  • 

§291.  Physical  Incompetency. 

§292.  Impotency. 

§293.  Impotency  Caused    by  Self  Abuse. 

8294.  Burden   of  Proof. 

§295.  Refusing  Means  of  Cure. 

§296.  Marriage  Voidable.  Not  Void. 

rHAl'TKI!    XXVI. 
CAVSKS    FOR    AHSOU'Ti:    IHVOKTK:    roNTINTKR 

0 

8297.  Imprisonment  for  Three  Years  or  More. 

8298.  Effect  of  Pardon. 

8299.  Conviction  of  Crime. 

8300.  Conviction   in   Another  State. 

8301.  Effect  of  Indeterminate  Sentence. 

8302.  In  case  of  Appeal. 

\ 


XIV  TABLE    OP    CONTENTS 

CHAPTER  XXVII. 

CAUSES  FOE  ABSOLUTE  DIVORCE:   CONTINUED. 

§303.  Desertion. 

§304.  What  Constitutes  Desertion. 

§305.  Must  Continue  for  Statutory  Period. 

§306.  When  Desertion  Justifiable. 

§307.  Separation  not  always  Desertion. 

§308.  Constructive  Desertion. 

§309.  Separation  by  Mutual  Consent. 

§310.  Where  Both  Dwell  in  Same  House. 

§311.  Refusal  to  Cohabit. 

§312.  Condonation   of  Desertion. 

§313.  Refusal  to  Follow  Husband. 

§314.  Desertion  not  Excused  by  Continuing  Support. 

§315.  Refusal  of  Sexual   Intercourse. 

CHAPTER  XXVIII. 

CAUSES  FOR   ABSOLUTE  DIVORCE:   CONTINUED. 

§316.  Habitual  Drunkenness. 

§317.  Definition. 

§318.  Constant  and  Continuous  Drunkenness. 

§319.  Use  of  Opiates. 

§320.  Period  of  Indulgence. 

§321.  Antenuptial    Habit. 

§322.  Condonation. 

\ 

CHAPTER  XXIX. 
CAUSES"  FOR  ABSOLUTE  DIVORCE:  CONTINUED. 

§323.  Divorce  Obtained  in  Another  State. 

§324.  Foreign  Divorce. 

§325:  Jurisdiction  Residence  of  Parties. 

§326.  Jurisdiction  Continued — Conflict  of  Laws. 

CHAPTER    XXX. 

DIVORCE  FROM  BED  AND  BOARD. 

§327.  •  When  may  be  Decreed. 

§328.  When  Absolute  Divorce  Granted. 

§329.  Purpose  of  the  Statute. 

§330.  Effect  of  the  Amendment. 

§331.  Extreme  Cruelty. 

§332.  Evidence   to   Establish   Extreme   Cruelty. 

§333.  Acts  Constituting  Extreme  Cruelty. 

' 


TAP.I.K    i>F    roNTKNT-  XV 

§334.     Acts  not  Extreme  Cruelty. 

§335.     Condonation  of  Extreme  Cruelty. 

§335a.  Refusal  of  the  Husband  to  Support  the  Wife. 

CHAPTER  XXXI. 

GENERAL  PROVISIONS  IN  ACTIONS  FOR   IH\oi;n; 
AND  ANNULMENT  OF  MARRIAGE. 

§336.  Residence  of  Parties.  X 

§337.  Oath  of  Plaintiff  as  to  Collusion. 

§338.  Wife  may  File  Bill  in  her  Own  Name. 

§339.  Temporary   Alimony   and    Expense   Money — Costs. 

§340.  Restraint  of  Liberty  of  Wife  and  Care  of  Children  while  Suit 
is  Pending. 

§341.  Custody  and  Care  of  Children  on  Final  Decree. 

§342.  Wife  Entitled  to  her  Real  Estate— When. 

§343.  Restoration  of  Personal  Estate  of  Wife. 

§344.  Trustees — When  may  be  Appointed. 

§345.  Duties  of  Trustees — Bonds. 

§346.  Husband  to  Disclose  on  Oath. 

§347.  Permanent  Alimony. 

§348.  Ascertainment  of  Amount. 

§349.  Limitation  of  Power  of  Court  to  Award. 

§350.  Testimony — When  and  how  Taken. 

§351.  Dower— When  Wife  Entitled  to. 

§352.  Lien  on  Real  and  Personal  Estate. 

§357.  Enforcement  of  Lien. 

§358.  Execution  to  Collect — Sale  or  Division  of  Property. 

§359.  Suit  to  Foreclose  Lien. 

§360.  Court  may  Alter  Decree. 

§361.  Legitimacy  of  Children  in  certain  Cases — Adultery — Former 
Spouse  Living — Non-Age. 

§362.  Cohabitation  after  Divorce — How  Punished. 

§363.  Who  may  File  Bill  to  Annul  Marriage — In  Case  of  Non-Age — 
Idiocy  or  Lunacy. 

§364.  Annulment — Force  or  Fraud — Denied  When — Custody  of  Chil- 
dren. 

§365.  Physical  Incapacity— Limitations. 

§366.  Admissions  and  Confessions — Testimony  of  Parties. 

§367.  Court  may  Deny  Relief  in  Certain  Cases  of  Adultery. 

§368.  Forgiveness  and  Condonation. 

§369.  Support  when  Divorce  from  Bed  and  Board  Denied. 

§370.  Divorce  from  Bed  and  Board  Revoked. 

§371.  Special  Question  to  be  Asked  of  Witnesses. 

§372.  Bill  of  Complaint  to  Allege  Names  and  Ages  of  Children.  Ser- 
vice of  Summons  on  Prosecutor. 

§373.  Remarriage  may  be  Forbidden — Limit  of  Time — Penalty  for 
Violation. 

§374.  Dower — Provision  in  Lieu  of  Tenants  by  Entireties. 

§375.  Alimony — When  Decree  Rendered  in  Another  State. 

§376.  Restoring  Former  Name  to  Wife. 

§377.  Right  of  Husband  to  Alimony  Out  of  Wife's  Property. 


XVI  TABLE   OF   CONTEXTS 

CHAPTER  XXXII. 

GENERAL    STATUTORY    PROVISIONS    CONCERNING 
HUSBAND  AND  WIFE. 

§378.     Abandonment  of  Wife  by  Husband. 

§379.  Married  Woman  Coming  from  Another  State  or  Country  With- 
out Her  Husband. 

§380.  Divorce  from  Bed  and  Board. — Effect  of  on  Wife's  Property  and 
Obligations. 

§381.  Rights  of  Married  Woman  in  Relation  to  Property  Owned  by 
Her. 

§382.     Alimony  Where  Wife  is  Deserted  or  Neglected  by  Husband. 

§383.     When  Husband  May  be  Required  to  Support  Wife. 

§384.     Proceedings  and  Practice. 

§385.     Care  and   Custody  of  Children — Allowance  May  be  Changed. 

§386.     Custody  of  Children  When  Husband  and  Wife  Separate. 

§387.     Legal  Impediment  to  Marriage  as  Bar  to  Actions  for  Damages. 

§388.     Punishment  of  Husband  for  Desertion. 

§389.     Certain  Wife  Desertion — Felony — Limitations. 


PART  FOUR. 
PLEADING  AND  PRACTICE. 

CHAPTER  XXXIII. 

SUITS  FOR  DIVORCE. 

§390.  Jurisdiction. 

§391.  The  Bill  of  Complaint. 

§392.  Defendant's  Domicile. 

§393.  Minor  Children. 

§394.  Causes  for  Divorce: — Adultery; — Extreme  Cruelty. 

§395.  Physical  Incompetency. 

§396.  Sentence  to  Imprisonment; — Desertion. 

§397.  Habitual    Drunkenness; — Divorce   in   Another    State. 

§398.  Failure  of  the  Husband  to  Support  the  Wife. 

§399.  General  Form  of  the  Bill. 

§400.  Verification  of  Bills  for  Divorce. 

§401.  Divorce  Suits: — How  Commenced  and  Conducted. 

§402.  Suit  to  Annul  Marriage: — How  Brought. 

§403.  Form  of  Bill  to  Annul  Marriage. 

§404.  Suits  to  Affirm  a  Marriage. 

CHAPTER  XXXIV. 

BRINGING   THE   DEFENDANT   INTO  COURT. 

§405.     Summons: — Form  and  Contents. 
§406.     Summons: — How  and  When    Served. 


TAI'.l.i:    <.|      roNTKNTS 

$407.  Substituted  Service. 

5408.  Affidavit  for  Order  of  Publication. 

$409.  Form  of  Affidavit. 

8410.  Appearance  of  the  Defendant. 

rilAPTKIi  XXXV. 

rj!orKKiHN<;s  AI-TI:I;  APPKAKAXCI:  or 
DEPENDANT. 

§411.  Copy  of  Bill  to  be  Served. 

§412.  Demurrers  and  Pleas  Abolished. 

8413.  Motion  to  Dismiss. 

8414.  Default  for  nojt  Appearing. 

8415.  Default  for  Want  of  Answer. 

8416.  Setting  aside  Default. 

8417.  Amending  Pleadings. 

8418.  Answer: — Form  of. 

8419.  Sworn  Answer: — Effect  of. 

8420.  Cross-Bills. 

§421.  Chancery  Pleadings:   How  Verified. 

§422.  Before  Whom  Pleadings  may  be  Sworn  to. 

§423.  Supplemental  Pleadings. 

8424.  Supplemental  Bills: — Nature  of;   When  Proper. 

8425.  Who  to  be  Made  Parties  to  a  Supplemental  Bill. 

8426.  Form  of  Supplemental  Bill. 

8427.  Leave  to  File: — How  Obtained;   Process. 
§428.  Defenses  to  Supplemental  Bill. 

8429.     Answers  to  Supplemental  Bills. 

§430.     Evidence  to  Support   Supplemental   BJ11. 

CHAPTKi:  XXXVI. 

pi{ori-:i-:mxcs  AFTKI;  issn:  .IOINKD  OR  n 

ENTERED. 

§431.  Evidence: — How  Taken. 

§432.  Reference  to  Take   Testimony:— How  Obtained. 

8433.  Testimony:— How  Taken. 

8434.  Testimony  in  Open  Court: — Objections  to. 

8435.  Witnesses  in  Divorce  Cases. 

8436.  Alimony  and   Expenses. 

8437.  Temporary  Alimony: — How  Procured. 

8438.  Order  for  Temporary  Alimony  and  Expenses: — Contents  of. 
§439.  Questions  of  Guilt  not  Considered. 

§440.     Amount  of  the  Allowance. 

rHAPTKK  XXXVII. 
OTIIKI:   INTKKLorrToliY   PKorKKIH  \<1S. 

§441.     Injunction  to  Restrain   Sale  or  Incumbrance  of  Property. 

8442.     Injunction  to  Restrain  Threatened  Injury. 

§443.     Proceedings  to  Compel  Payment  of  Temporary  Alimony. 


XV111  TAKLE    OF    CONTENTS 


§444.     Alimony:  —Proceedings   to   Compel   Payment   under   the   Provi- 
sion of  Act  No.  379,  Public  Acts  of  1913. 
§445.     Due  Process  of  Law. 

CHAPTER  XXXVIII. 

MOTIONS  AND  AFFIDAVITS. 

§446.  Motions  Classified. 

§447.  Motions  Granted  of  Course. 

§448.  Special  Motions  and  Petitions. 

§449.  Motions — Framing  Issues  on  Hearing. 

§450.  Witnesses  on  Hearing  of  Motions. 

§451.  Common  and  Special  Orders. 

CHAPTER  XXXIX. 

HEARING  AND  DECREE. 

§452.  Jury  Trials  in  Divorce  and  Annulment  Case's. 

§453.  Proofs  in  Divorce  and  Annulment  Cases: — When  and  How 
Taken. 

§454.  Notice  of  Hearing  not  Necessary. 

§455.  Cross-Examination  of  Opposite  Party. 

§456.  Witnesses: — Compelling  Attendance  and  Testimony. 

§457.  Warrant  for  Apprehension  of  Delinquent  Witness. 

§458.  Mode  of  Administering  Oath  to  Witnesses.  • 

§459..  Competency  of  Witness — Religious  Opinions. 

§460.  Competency  of  Witness: — Appreciation  of  Nature  and  Obliga- 
tion of  Oath. 

§461.  Children  as  Witnesses. 

§462.  Conviction  of  Crinie. 

§463.  Aclmissibility  of  Testimony. 

§464.  Court  to  Rule  on  All  Objections. 

§465.  Argument  of  Divorce  Cases. 

§466.  Decrete: — Preparing  and   Settling. 

§467.  Rehearing: — Application  for. 

§468.  Enrollment  of  Decree. 

§469.  Discharge  and   Satisfaction  of  Decree. 

§470.  Enforcement  of  Decree. 

CHAPTER  XL. 

1'OWERS  AND  DUTIES  OF  PROSECUTING  ATTORNEYS 
IN  DIVORCE  CASES. 

§471.  Reason  for  Public  Representation. 

§472.  General  Legislation. 

§473.  Michigan  Statutory  Provisions. 

§474.  Duty  on  being  Served  with  Summons. 

§475.  Subjects  of  Investigation. 

§476.  Prosecutor  not  Disqualified  to  Act  for  Either  Party. 

§477.  Compensation  for  Services. 


r  \i:i.i:    nr   CONTBN  i  ^  \  I  \ 

j 

CIIAITI.K  XI. I. 

AIM-HALS  TO  sri'i:i:.Mi:  corirr. 

|478.  Who  may  Appeal. 

{479.  Claim  of  Appeal. 

§4SO.  Extension  of  Time  for  Appeal. 

§481.  Bond  to  Stay  Proceedings. 

§482.  Evidence— How  Settled. 

§483.  Method  of  Settling  the  Evidence  for  Review. 

§484.  Notice  of  Settling  Case  on  Appeal. 

§485.  Duty  of  Clerk. 

§486.  Original  Files  may  be  Dispensed  with— When. 

§487.  Extension  of  Time  for  Making  Return. 

§488.  Motion  to  Dismiss. 

§489.  Service  of  Papers. 

§490.  Notices — How  served. 

§491.  Computation  of  Time. 

§492.  Court  may  Direct  Manner  of  Service — When. 

§493.  Practice  Relating  to   Motions. 

§494.  Motion  Days  and  Motion  Docket. 

§495.  Notice  of  Argument  of  Causes. 

§496.  Record  to  be  Printed  and  Served. 

§497.  Briefs— Contents  and  Service  of. 

§498.  Call  of  Cases  and  Argument. 

§499.  Taxation  of  Costs. 

§500.  Rehearing: — Application  For; — Costs  on  Denial. 

PART  FIVE. 
FORMS  IN  DIVORCE  PROCEDURE. 

No.     1.  Bill  of  Complaint  for  Adultery,  General  Form. 

No.    2.  Bill  for  Divorce  by  Wife — Adultery. 

No.     3.  Bill   for  Divorce — Physical  Incapacity. 

No.    4.  Bill  for  Divorce,  Charging  Desertion. 

No.     5.  Bill  Alleging  Desertion. 

No.  6.  Bill  -for  Divorce,  Charging  Extreme  Cruelty,  and  Asking 
for  Alimony  and  Custody  of  Children. 

No.     7.  Bill  for  Divorce  by  Wife,  Charging  Habitual  Drunkenness. 

No.    8.  Bill  for  Divorce  From  Bed  and  Board. 

No.  9.  Bill  for  Divorce  Charging  Conviction  of  a  Felony  and  Sen- 
tence to  the  State  Prison  for  Three  Years. 

No.  10.  Bill  for  Divorce  Procured  by  Defendant  in  Another  State. 

No.  11.  Bill  by  Wife  for  Refusal  to  Support. 

No.  12.  Bill  to  Annul  Marriage. 

No.  13.  Bill  to  Affirm  Marriage. 

No.  14.  Chancery  Summons. 

No.  15.  Affidavit  for  Order   of  Publication— Non-resident   Defendant. 

No.  16.  Affidavit  for  Order  of  Publication  When  Process  Cannot  be 
Served. 

No.  17.  Order  of  Publication — Non-resident  Defendant. 

No.  18.  Order  of  Publication — Defendant's  Residence  Unknown. 

No.  19.  Order  of  Publication — Defendant  Concealed. 

No.  20.  Notice  of  Appearance  of  Defendant. 


XX  TABLE    OF    CONTEXTS 

v  No.  21.  Motion  to  Dismiss. 

•     No.  22.  Order  Pro  Confesso,  for  not  Appearing. 

No.  23.  Order  Pro  Confesso  for  not  Answering. 

No.  24.  Order  Pro  Confesso,  Defendant  Brought  in  by  Publication. 

/  No.  25.  Affidavit  of  Non-Appearance. 

No.  26.  Affidavit  of  Default  for  Want  of  Answer. 

No.  27.  Supplemental  Bill. 

No.  28.  Petition  for  Leave  to  File  Supplemental  Bill. 

No.  29.  Notice  of  Application. 

No.  29a.  Order  Granting  Leave  to  File  Supplemental  Bill. 

No.  30.  Answer — General  Form. 

No.  31.  Answer  and   Cross-Bill. 

No.  32.  Petition  for  Reference  to  a  Commissioner  to  Take  Proofs. 

No.  33.  Order  of  Reference  to  Take  Proofs. 

No.  34.  Notice  of  Taking  Proofs  Before  Commissioner. 

No.  35.  Order  Granting  Motion  to  Dismiss  Bill. 

No.  36.  Report  of  Circuit  Court  Commissioner  as  to  Alimony. 

No.  37.  Order   Confirming  Report   of   Commissioner. 

No.  38.  Petition  for  Temporary  Alimony  and  Expenses  by  Plaintiff. 

No.  39.  Petition  for  Alimony  and  Expenses  by  Defendant. 

No.  40.  Order  Allowing  Temporary  Alimony  and  Expenses  to  Plain- 
tiff. 

No.  41.  Order  for  Alimony  and  Expenses  to  Defendant. 

No.  42.  Order  Denying  Temporary  Alimony. 

No.  43.  Demand  for  Payment  of  Temporary  Alimony. 

No.  44.  Affidavit  to  Obtain  an  Attachment  for  Non-Payment  of  Tem- 
porary Alimony. 

No.  45.  Order  to  Show  Cause  Why  Attachment  Should  not  Issue. 

No.  46.  Order  for  Attachment  and  Commitment. 

No.  47.  Injunction  to  Restrain  Sale  or  Encumbrance  of  Property. 

No.  48.  Injunction  to  Restrain  Threatened  Injury. 

No.  49.  Decree  of  Divorce  Reserving  Question  of  Alimony. 

No.  50.  Decree  of  Divorce  and  for  Alimony. 

No.  51.  Decree  for  Permanent  Alimony  After  Divorce. 

No.  52.  Decree  of  Divorce  from  Bed  and  Board  and  for  Alimony. 

No.  53.  Decree  Annulling  Marriage. 

No.  54.  Decree  Affirming  Marriage. 

No.  55.  Petition  for  Re-Hearing. 

No.  56.  Order  for  Re-Hearing. 

No.  57.  Order  Denying  Re-Hearing. 

No.  58.  Certificate  of  Enrollment. 

No.  59.  Discharge  and  Satisfaction  of  Decree. 

No.  60.  Petition  for  Discharge  of  Decree. 

No.  61.  Order  Discharging  Decree. 

No.  62.  Order  Denying  Discharge  of  Decree. 

No.  63.  Order  Directing  Prosecuting  Attorney  to  Appear  and  Defend. 

No.  64.  Report  of  Prosecuting  Attorney. 

No.  65.  Order  Appointing  an  Attorney  to  Defend. 

No.  66.  Claim  of  Appeal. 

No.  67.  Notice  of  Appeal  and  of  Application  for  Approval  of  Bond. 

No.  68.  Bond  on  Appeal. 

No.  69.  Case  on  Appeal. 

No.  70.  Notice  of  Settling  Case  on  Appeal. 

No.  71.  Notice  of  Amendments  to  Case  on  Appeal. 

Appendix. 

Index. 


PART  ONE 
MARRIAGE  AND  ITS  SOLEMNIZATION 


PART  ONE— MARRIAGE  AND  ITS  SOLEMNIZATION. 

Chapter       I.     Introduction. 

Chapter     II.     Conflict   of  Laws   Relating   to   Marriage  and 
Divorce. 

Chapter    III.    Validity    of    Foreign    Divorce    as    Dependent 
Upon  Jurisdiction  Over  Defendant. 

Chapter    IV.  Definition  and  Nature  of  Marriage  Contract. 

Chapter      V.  Mode  of  Solemnizing  Marriages. 

Chapter    VI.  Proof  of  Marriage. 

Chapter  VII.  Presumptions. 


CHAPTER  I. 

I  NTRODUCTION. 

§1.    Definition. 

§2.     Monogomy. 

§3.     Primitive  Marriage — Polygamy. 

§4.     Primitive  Ceremonies  of  Marriage. 

§5.     Marriage  a  Contract. 

§6.     Government  Control  Over  Marriage. 

§7.     Mode  of  Constituting  Marriage  in  England. 

§8.     Mode  of  Constituting  Marriage  in  Scotland. 

§9.    Mode  of  Constituting  Marriage  in  the  United  States. 

§10.  Consent  the  Essence  of  a  Valid  Marriage. 

§11.  Marriage  Ceremonies. 

§12.  Jurisdiction  in  Matrimonial  Causes. 

§13.  Property  Rights  of  Husband  and  Wife. 

§1.    Definition. 

Marriage  is  the  union  of  a  man  and  woman  in  the  legal 
relation  of  husband  and  wife.  The  term  includes  both  the  act 
which  creates  the  union,  and  the  union  itself  as  the  resulting 
status  of  the  parties.  In  one  form  or  another,  it  is  the  oldest 
social  institution  known  to  the  world,  and  is  the  source  of  its 
most  ancient  social  laws.  Society,  indeed,  could  not  long  exist 
without  sonic  rules  imposed  by  the  law  of  necessity  for  the 
appropriation  of  man  and  woman  to  one  another,  securing 
them  .in  the  enjoyment  of  each  other's  society,  and  defining 
i  heir  din  ics  and  obligations,  each  to  the  other  and  both  to  their 
offspring. 

§2.     Monogomy. 

A«  ronlinu  to  the  law  or  practice  of  the  greater  part  of  the 
civilized  world,  one  man  marries  and  becomes  the  husband  of 
only  one  woman  at  a  time,  which  Christ  declares  to  be  the 
fundamental  law  of  God,  given  in  the  institution  of  marriage 
at  the  creation  of  man.  This  reference  of  marriage  to  the 
highest  conceivable  origin,  which  has  an  essential  relation  to 
the  characteristic  purification  of  it, 'the  Apostle  Paul  develops 
for  guidance  in  the  practical  duties  of  the  wedded  state,  bring- 


§3  INTRODUCTION 

ing  to  light  the  formative  principle  of  wedlock  as  the  great 
earthly  symbol  of  the  sacred  "mystery"  of  the  union  of  the  Son 
of  God  with  humanity.  "For  this  cause  (that  is,  since  the  Son 
of  God  left  the  Father  that  he  might  join  himself  with  our 
flesh)  shall  a  man  leave  his  father  and  mother  and  cleave  to 
his  wife,  and  the  twain  shall  become  one  flesh."1 

§3.    Primitive  Marriage — Polygamy. 

•  The  Mormon  heresy  on  this  subject  has  been  practically  sup- 
pressed by  the  enactment  and  enforcement  of  salutary  laws. 
But  the  familiar  system  of  monogomy  is  a  comparatively  re- 
cent development  of  marriage.  With  those  who  reject  the 
Christian  records,  a  great  diversity  of  opinion  exists  as  to  the 
particular  form  of  primitive  marriage.  It  is  conceivable  that 
many  forms  may  have  been  introduced  at  a  very  early  period. 

Polygynia — one  man  with  many  wives,  and  polyandria — one 
wife  with  many  husbands,  have  certainly  been  in  existence. 
It  has  frequently  been  asserted  that  intercourse  was  originally 
promiscuous.2  This  negation  of  marriage  has  been  and  still 
is  vehemently  disputed,  and  with  excellent  reason.  The  same 
authority  also  affirms  a  primitive  custom  of  intermarriage  be- 
tween brothers  and  sisters,  the  consanguine  family  of  the 
Malay  civilization,  and  a.  custom  of  intermarriage  of  several 
sisters  with  each  other's  husbands  and  of  several  brothers  with 
each  other's  wives.  This  custom  is  said  to  have  resulted  in  the 
formation  of  a  gens,3  governed  in  its  marriage  relations  by  the 
principle  of  exogamy.  After  this  comes  the  marriage  of  single 
pairs,  with  or  without  exclusive  co-habitation.  To  speak  of 
these  related  customs  as  ancient,  rather  than  as  primitive,  is 
more  in  accordance  with  such  evidence  as  exists.  It  is  impos- 
sible to  prove  the  earliest  of  them  primitive;  that  is,  the 
original  custom. 

The  patriarchal  families  were  largely  polygamous,  and  after 
them  true  monogamy  does  not  appear  in  any  general  develop- 
ment before  the  rise  of  private  property,  lineal  succession  and 
slavery. 

1.  Eph.  V.  22-33.  to  represent  race  and  nation.    In 

2.  Morgan's    Systems    of    Con-  the    French    law    it    is    used    to 
sanguinity  and  Affinity.  signify  people  or  nation. 

3.  A  word  used  by  the  Romans 


MARRIAGE   CONTRACT  §5 

§4.    Primitive  Ceremonies  of  Marriage. 

The  primitive  marriage  ceremonies  are  immense  in  number 
and  some  of  them  of  striking  beauty. 

As  regards  Christian  Europe,  in  A.  D.  1085  Hildebrand 
declared  marriage  a  sacrament  and  at  the  reformation  Calvin 
declared  it  an  institution  of  God.  The  school  of  Grotius  de- 
scribed it  as  a  contract  of  partnership.  In  all  countries  mar- 
riage is  quite  generally,  though  not  always,  accompanied  by  a 
religious  ceremony  of  more  or  less  formality. 

§5.    Marriage  a  Contract. 

In  the  eye  of  the  law,  even  where,  on  public  grounds,  the 
intervention  of  a  minister  of  religion  is  declared  essential, 
marriage,  considered  as  the  act  which  forms  the  union,  is  a 
contract.  While  the  law  deals  with  marriage  as  a  contract, 
there  has  been,  and  still  is,  much  controversy  whether  it  really 
is  a.  contract,  and,  if  so,  then  to  what  class  of  contracts  it 
belongs.  For,  though  consent  of  both  parties — one  chief  essen- 
tial of  all  contracts — is  universally  a  requisite  to  a  legal  mar- 
riage, yet  all  of  the  incidents  of  the  condition  and  status  of 
the  parties,  which  the  act  of  consent  constitutes  and  creates, 
are  fixed  by  positive  law. 

Some  confusion  of  thought  may  be  due  to  the  use  of  the  term 
marriage  to  denote  both  the  contracting  act  and  the  status 
which  that  act  creates.  In  the  United  States  it  has  been 
decided  that  marriage  is  not  a  contract  within  the  meaning  of 
that  provision  of  the  Federal  constitution  which  prohibits 
legislation  impairing  the  obligation  of  contracts.  The  peculiar 
relation  of  the  several  states  to  the  Federal  government  occa- 
sions difficulty  on  this  point. 

In  many  of  the  states  marriage  is  declared  by  statute  to  be 
a  civil  contract,  so  far  as  its  validity  is  concerned.  This 
statutory  declaration  means  no  more  than  that  to  constitute  a 
valid  marriage  the  agreement  and  consent  of  both  parties  must 
exist,  and,  like  all  other  contracts,  that  agreement  and  consent 
must  be  made  and  given  by  competent  parties.  The  language 
employed  in  the  Michigan  statute  is:  "Marriage,  so  far  as  its 
validity  is  concerned,  is  a  civil  contract,  to  which  the  consent 
of  parties  capable  in  law  of  contracting  is  essential."6 

4.  Selection    of   wives   outside  Mankind,     Lubbock's     Origin     of 
the  gens.  Civilization. 

5.  McLennan,    Primitive    Mar-  6.    C.  L.   '15,    (11363) ;    Howell 
riage,  2nd  Ed.,  Early  History  of  2nd  Ed.  §11424. 


§6  INTRODUCTION 

It  is  plain,  however,  that  while  marriage  is  legally  termed 
a  contract,  it  is  distinguished  from  all  other  contracts,  inas- 
much as  in  the  latter  the  parties  assign  and  determine  their 
rights  and  duties  substantially  at  their  own  choice,  while  in 
marriage  the  law  determines  practically  all  the  rights  and 
duties  which  are  elements  of  the  new  relation. 

§6.    Government  Control  Over  Marriage. 

Each  sovereign  nation,  kingdom  or  empire  of  the  civilized 
world  has  the  right  to  regulaterand  control  the  marriage  of  its 
domiciled  citizens,  and  the  rights,  duties  and  obligations  aris- 
ing from  marriage  relation. 

The  British  parliament  has  enacted  laws  relating  to  mar- 
riage that  differ  materially  for  the  different  divisions  of  the 
empire.  Sole  power  over  marriage  in  the  Dominion  of  Canada 
was  delegated  to  the  Dominion  Parliament,  by  the  law  known 
as  the  British  North  American  Act.  While  the  Canadian 
Dominion  Parliament  has  the  sole  power  to  pass  laws  as  to 
the  legal  qualifications  of  parties  to  a  marriage  and  offenses 
against  the  marriage  relation,  as  well  a^  providing  for  the 
punishment  therefor,  it  is  conceded  that  each  provincial  legis- 
lature in  Canada  has  power  to  enact  legislation  governing  the 
form  of  marriage  within  its  own  province,  and  not  repugnant 
to,  nor  conflicting  with,  the  federal  laws  of  the  Dominion.7 

The  British  Parliament,  by  an  act  known  as  the  Common- 
wealth of  Australia  Constitution  Act,  has  also  delegated  to 
the  Australian  Commonwealth  Parliament  the  power  to  enact 
uniform  marriage  laws  for  the  whole  of  Australia.  The  Aus- 
tralian Parliament,  however,  has  not  enacted  any  legislation 
under  this  delegated  power,  and  the  marriage  laws  of  the 
different  states  of  the  Australian  Commonwealth  are  very  dis: 
similar.  Germany,  France,  and  a  large  number  of  the  other 
nations  of  Europe,  have  uniform  marriage  laws.s 

7. .  British  Columbia  R.  S.  1897,  Columbia     R.      316 ;      Legislative 

Ch.  129,  Sec.  24;  R.  S.  Manitoba,  Pow,er  in  Canada,  P.  488. 

1902,   Ch.    173;    Alberta   Statutes,  8.     Commonwealth        Australia 

1908,  Ch.   20,  Sec.  23;    R.   S.   Sas-  Act    (63  &  64  Viet.  Ch.  12);   Mil- 

katchewan,    1908.    Ch.    22;     Cons.  ler   v.    Major,    4   Austr.    C.    L.   R. 

Statutes    of    Nova    Scotia,    1900,  219;    Parker   v.   Parker,   5  Austr. 

Tit.    17;    R.   S.   of    Ontario,    1897,  C.  L.  R.  691. 
Ch.  162;   Scott  v.  Scott,  4  British 


MODE   OP   CONSTITUTING    MARRIAGE    IN   ENGLAND  §7 


. 


§7.    Mode  of  Constituting  Marriage  in  England. 

In  England,  to  insure  deliberation,  and  to  preserve  indis- 
putable evidence  of  so  important  a  fact,  English  law  makes 
certain  formalities  essential  to  marriage.  A  breach  of  the 
contract  to  many  gives  rise  to  an  action  for  damages,  but  the 
marriage  itself  will  not  ordinarily  be  treated  as  null  merely 
hecaiise  either  party  procured  it  by  fraud  or  misrepresentation. 

AnoiluM-  feature  in  which  marriage  in  England  and  in  some 
of  the  states  differs  from  other  contracts  is  that  it  cannot  be 
consummated  in  a  moment  by  the  act  of  the  parties,  but  cer- 
tain preliminary  notices  must  be  given  and  certain  formalities 
observed. 

In  England,  since  1836,  persons  have  the  option  of  contract- 
ing marriage  either  with  or  without  a  religious  ceremony.  If 
the  former,  it  may  be  either  in  the  established  church  or  in  a 
dissenting  chapel.  If  it  is  to  take  place  in  the  established 
church,  there  must  be  a  publication  of  banns  of  marriage  for 
three  successive  Sundays,  but  a  marriage  license  obtained  from 
the  ordinary  of  the  district  will  dispense  with  publication  of 
the  banns.  The  marriage  must  take  place  in  the  church,  and 
the  marriage  service  of  the  Church  of  England  must  be  read 
over,  both  within  the  canonical  hours,  that  is  between  eight 
and  twelve  o'clock  A.  M.,  in  the  presence  of  at  least  two  wit- 
nesses. 

If  the  marriage  is  to  be  celebrated  in  p,  dissenting  chapel 
(and  for  that  purpose  such  chapel  must  be  duly  licensed  and 
registered),  a  certificate  or  license  must  be  procured  after 
notice  from  the  registrar  of  the  district,  who  must  be  present 
as  one  of  the  witnesses,  except  in  the  case  of  Quaker  or  Jewish 
marriages.  If  the  marriage  is  without  religious  ceremony,  it 
must  take  place  in  the  office  of  the  registrar  of  the  district, 
and  in  the  presence  of  two  or  more  witnesses.  Both  parties,  in 
the  presence  of  the  witnesses,  must  declare  that  they  take  each 
other  as  husband  and  wife,  the  canonical  hours  being  observed 
in  all  cases.  The  omission  of  any  of  these  requisites,  with  the 
knowledge  of  the  parties,  makes  the  marriage  void. 

It  is  a  felony  to  celebrate  a  marriage  in  a  private  house, 
unless  by  special  license  from  the  archbishop.  In  all  cases 
I  lie  fact  of  the  marriage  must  be  entered  in  a  church  register, 
also  in  a  civil  register,  the  latter  being  filed  and  kept  in 
Somersett  Hou.se  in  London,  where  a  copy  of  the  certificate  of 
registration  may  be  had  for  a  small  sum.  Making  or  signing 


§8  INTRODUCTION 

a  false  declaration  on  giving  notice  to  the  officials  of  the  in- 
tended marriage  is  made  perjury  by  law.  In  the  case  of 
marriage  of  persons  under  twenty-one  years  of  age,  evidence 
of  the  consent  of  parents  or  guardians  must  be  produced  to  the 
registrar  or  other  officer.  There  are  penalties  imposed  for  false 
representations  of  such  consent,  but  the  lack  of  consent  of 
parents  or  guardians  does  not  make  the  marriage  void.  The 
marriage  of  Quakers  and  Jews  is  subject  to  peculiar  legislation. 
Such  marriages  need  not  be  in  a  registered  building,  aijd  the 
registering  official  of  the  Quakers  or  the  secretary  of  Jewish 
synagogue,  is  authorized  to  be  present  instead  of  the  registrar. 

§8.    Mode  of  Constituting  Marriage  in  Scotland. 

In  Scotland  the  maxim  of  the  civil  law,  consensus  non 
conciibitus  facit  nuptiam — consent,  not  lying  together,  con- 
stitutes marriage — has  been  adopted,  and  this  consent  can  be 
proved  either  by  a  regular  ceremony  evidenced  by  a  public 
record,  or  in  three  other  modes  known  to  the  law. 

The  chief  impediments  to  this  consent  are  nonage,  insanity,, 
impotency,  consanguinity  within  the  prohibited  degrees,  exist- 
ing marriage,  and  themselves,  adultery,  in  the  case  of  the 
adulterers.  The  marriage  is  null  if  force  has  been  used,-or  an 
error  in  belief  as  to  the  woman's  chastity  has  been  caused  by 
her  misrepresentations  or  concealment,  or  a  mistake  of  per- 
sonal identity  occurs,  or  a  fraudulent  conspiracy  has  been 
formed  which  brought  about  the  marriage. 

The  three  other  modes  referred  to  for  proving  consent,  be* 
sides  that  of  the  regular  ceremony,  are  known  as  irregular 
marriages.  Such  marriages  are  constituted  by  consent  which 
is  proved  by  a  written  or  verbal  declaration  of  interchange  of 
consent  by  a  promise  to  marry,  on  the  faith  of  which  inter- 
course has  followed,  or  by  co-habitation,  habit,  and  general 
repute. 

Proclamation  of  banns  in  the  parish  church  is  required  for 
a  regular  marriage,  but,  by  certain  formalities,  a  certificate 
may  be  procured  from  the  registrar  which  will  be  sufficient 
authority  for  a  minister,  clergyman  or  priest  to  celebrate  a 
regular  marriage  in  the  same  manner  as  in  the  case  of  a  cer- 
tificate of  proclamation  of  the  banns  in  the  parish  church.  'No 
minister  of  the  established  church  of  Scotland,  however,  is 
obliged  to  celebrate  a  marriage  not  preceded  by  proclamation 
of  the  banns.  Where  objection  is  made  to  the  marriage  on  the 


riiNSIINT    Till:    KSSKNCE    OF   A    VALID    MAKKIAGE  §10 

of  legal  capacity  to  marry,  or  any  legal  impediment  to 
marriage,  the  registrar  is  forbidden  to  issue  a  certificate  until 
there  has  been  produced  the  judgment  of  a  court  of  competent 
jurisdiction  overruling  the  objection. 

§9.    Mode  of  Constituting  Marriage  in  the  United  States. 

The  law  of  marriage  in  the  United  States  is  far  from  being 
settled  or  uniform,  but  is  now,  and  for  a  considerable  period  of 
tiim-  has  been,  in  ;i  n.insitory  condition.  There  has  been,  and 
still  is,  much  discussion  looking  toward  a  uniformity  of  mar- 
riage and  divorce  laws,  but  as  yet  very  little,  progress  has  been 
made,  if  any.  The  conception  of  marriage  held  by  ninny  jurists 
in  the  United  States  differs  materially  from  that  of  the  Roman 
Church,  which  elevates  it  to  a  sacrament,  also  from  the  statu- 
tory one  which  makes  it  nothing  more  than  a  contract.  In  the 
language  of  Judge  Story,  "It  is  more  than  a  contract ;  it  is  an 
institution  founded  upon  the  consent  and  contract  of  the  par- 
ties, and  has  peculiarities  in  its  nature,  character  and  opera- 
tion, different  from  what  belongs  to  ordinary  contracts."  This 
view  of  marriage  as  something  more  than  a  mere  contract  is 
of  special  importance  in  the  United  States,  because  of  the 
numerous  questions  arising  relating  to  marriage  and  divorce 
under  conflicting  laws  in  fifty  or  more  independent  jurisdic- 
tions. Under  the  Federal  constitution,  each  state  has  full 
power  to  pass  laws  governing  marriage  in  its  own  jurisdiction, 
and  the  laws  of  each  state  are  very  dissimilar. 

The  Federal  Congress  has  supervisory  control  over  the  terri- 
torial legislatures  as  to  the  marriage  laws  of  each  territory, 
and  full  legislative  control  on  the  subject  in  the  District  of 
Columbia.0 

§10.    Consent  the  Essence  of  a  Valid  Marriage. 

In  the  United  States,  as  well  as  in  all  civilized  nations, 
consent  is  of  the  very  essence  of  the  marriage  contract.  There 
can  be  no  valid  marriage  by  those  who  have  not  sufficient  raen- 

9.    Federal     Statutes,     Annot.,  1068,  30   Sup.  Ct.  R.  682;    De  la 

Vol.    1,    p.    704;    Vol.    2,    p.    838;  Rama  v.   De  la  Rama,  201  V.   S. 

Cross  v.  Allen,  141  U.  S.   528,  12  303,   50   L.   Ed.   765,    26   Sup.   Ct. 

Sup.   Ct.  R.   67,  35    L.    Ed.    843;  R.  405;  Travers  v.  Reinhardt,  205 

Sims   v.   Sims,   175  U.   S.   162,   20  U.  S.  423,  51  L.  Ed.  865,  27  Sup. 

Sup.   Ct.  R.,   58  L.  Ed.   115;    Sis-  Ct.  R.  563;  In  re  Lando  112  Minn, 

taire  v.   Sistaire,  218  U.  S.  1,   54  127  N.  W.  1125,  30  L.  R.  A.    (N. 

L.   Ed.   905,  28   L.  R.  A.    (N.   S.)  S.)    940;    Garcia  v  Garcia,   25   S. 

9 


§11  INTRODUCTION 

tality  to  consent,  such  as  idiots  or  insane  persons.  So  a  mar- 
riage procured  by  force  or  fraud  may  be  annulled.  If  another 
husband  or  wife  of  either  of  the  parties  is  living  at  the  time  of 
the  celebration  of  a  marriage,  such  marriage  is  void.  To  make 
a  valid  marriage,  each  of  the  'parties  must  have  attained  the 
age  of  consent.  This  varies  in  different  states,  ranging  from 
sixteen  to  eighteen  years  for  males  and  from  twelve  to  sixteen 
years  for  females. 

The  consent  of  parents  or  guardians  of  minors  is  required 
by  the  statutes  of  some  of  the  states.  Whether  such  a  mar- 
riage without  consent  of  parents  or  guardians  would  be  void 
depends  largely  upon  the  statutes  of  the  different  states.  In 
some  it  is  declared  void,  in  others  voidable  only.  The  distinc- 
tion between  void  and  voidable  marriages  exists  in  all  the 
states.  A  void  marriage  is  a  nullity  ab  initio  and  its  validity 
may  be  impeached  in  any  couf t  and  at  any  time,  in  either  a 
direct  or  a  collateral  proceeding.  A  voidable  marriage,  how- 
ever, is  valid  until  a  competent  tribunal  has  pronounced  it  void 
in  a  direct  proceeding  for  that  purpose.  It  cannot  be  im- 
peached collaterally.  In  most  of  the  states,  relationship  within 
the  prohibited  degrees  of  consanguinity  or  affinity  renders  a 
marriage  void,  while  such  causes  as  nonage,  insanity,  fraud, 
duress  and  physical  disability  render  it  voidable  only.  The 
effect  of  this  distinction  is  upon  the  status  of  the  parties  when 
void  the  relationship  is  unlawful  from  the  beginning;  when 
voidable  it  is  lawful  until  the  marriage  is  dissolved  by  court 
of  competent  jurisdiction. 

§11.    Marriage  Ceremonies. 

The  laws  of  many  of  the  states  render  certain  solemnities 
indispensable  in  the  celebration  of  marriage,  though  informal, 
or  what  is  known  as  common  law  marriages,  have  to  quite  a 
large  extent  been  recognized  by  the  Federal  courts  and  by  the 
courts  of  many  of  the  states.  A  present  agreement  between 
competent  parties  to  take  each  other  as  husband  and  wife, 
followed  by  actual  and  open  co-habitation  pursuant  to  its 
terms,,  is  generally  regarded  as  constituting  a  valid  marriage. 
Such  a  marriage,  in  a  contest,  becomes  the  subject  of  proof,  and 

D.  645,  127  N.  W.  586,  Ann.  Gas.  R.  936,  38  Atl.  81;  In  re  Chace, 

1912  C,  621,  32  L.  R.  A.  (N.  S.)  26  R.  I.  531,  69  L.  R.  A.  493,  58 

424;  State  v.  Shattuck,  69  Vt.  Atl.  978,  3  Ann.  Gas.  1050. 
403,  40  L.  R.  A.  428,  60  Am.  St.  \ 

10 


KIiJHTS    OF    HUSBAND    AXM     \VIFi:  §13, 

may  be  proved  by  showing  actual  co-habitation  ;is  husband  and 
wife,  acknowledgment,  declarations,  conduct,  repute,  reception 
aiming  neighbors,  .md  the  like.  But  the  words  of  the  agree- 
ment must  not  be  verba  de  futuro;  such  an  agreement  gives 
only  cause  for  an  action  for  breach  of  promise  to  marry.  If, 
however,  an  agreement  iu  verba  de  futuro  is  followed  by  con- 
summation a  le.ua I  presumption  is  raised  that  the  words  de 
present i  afterwards  passed  between  the  parties,  and  unless  this 
presumption  is  overcome  by  proof  the  marriage  will  be  sus 
lained. 

The  formal  marriage  throughout  all  the  states  consists  in 
having  the  celebration  take  place  before  a  clergyman  or  before 
some  civil  officer  designed  by  the  statute.  So  far  as  forms  and 
ceremonies  are  concerned,  it  is  a  general  rule  that  the  validity 
of  the  marriage  is  to  be  determined  by  the  law  of  the  state  in 
which  it  is  solemnized. 

§12.    Jurisdiction  in  Matrimonial  Causes. 

In  the  United  States,  jurisdiction  in  all  matrimonial  causes 
is  generally  vested  in  courts  of  equity  or  in  courts  having  equit- 
able jurisdiction  and  powers. 

In  some  of  the  states  the  distinctions  between  legal  and  equit- 
able jurisdiction  have  been  abolished  so  far  as  it  is  possible  to 
do  so,  but  in  many  respects  such  distinctions  are  so  marked 
that  they  cannot  wholly  be  obliterated.  In  other  states  such 
distinctions  are  retained,  but  both  legal  and  equitable  jurisdic- 
tion vested  in  the  same  court. 

The  character  of  the  questions  which  arise  in  matrimonial 
causes,  and  the  nature  of  the  remedy  to  be  afforded,  are  pecu- 
liarly  within  the  functions  of  courts  of  equity,  and  in  niosl 
states,  if  not  in  all.  such  causes  are  disposed  of  in  courts  having 
that  jurisdiction. 

§13.    Property  Rights  of  Husband  and  Wife. 

Within  comparatively  recent  years  the  common  law  as  to 
property  rights  of  husband  and  wife  have  been  materially 
changed  by  statutes,  familiarly  known  as  the  "married  women 
acts,"  have  been  adopted  to  a  greater  or  less  extent  in  all  of 
the  states.  By  these  acts  married  women  have  been  empowered 
to  hold  real  and  personal  property,  with  the  same  right  as 
unmarried  women  to  its  management,  control  and  disposition, 
to  carry  on  business  on  their  own  account  for  their  own 

11 


§13  INTRODUCTION 

exclusive  benefit,  and  to  make  enforceable  contracts  in  relation 
to  their  separate  property  and  the  conduct  of  their  business. 

In  most  of  the  states  married  women  may  sue  and  be  sued 
in  their  own  name,  without  joining  their  husbands,  although  in 
some  of  the  states  it  is  still  necessary  to  join  the  husband  in 
an  action  against  the  wife  in  certain  actions  of  tort. 

During  co-habitation,  the  law,  from  that  circumstance,  pre- 
sumes the  assent  of  the  husband  to  all  contracts  made  by  the 
wife  for  necessaries  which  are  suitable  to  the  husband's  degree 
and  estate.  Even  though  the  husband  be  a  minor,  he  is  liable 
for  necessaries  furnished  to  his  wife  and  family,  their  interests 
being  considered  as  identified  with  his.  Contracts  in  restraint 
of  marriage  are  wholly  void. 


12 


CHAPTER  II. 

CONFLICT  OF  LAWS  RELATING  TO  MARRIAGE  AND 

DIVORCE. 

§14.  Foreign  Marriages. 

§15.  Marriages  against  Public  Policy  and  Morality. 

§16.  Incestuous  and  Polygamous  Marriages. 

§17.  Incestuous  Marriages. — Void  or  Voidable. 

§18.  Who  May  Ask  for  Annulment  of  Voidable  Marriage. 

§19.  Marriage  After  Divorce  Granted. 

§20.  Marriage  During  Prohibited  Period. 

§21.  Protection  of  Injured  Party  and  Offspring  of  Illegal  Marriage. 

§22.  Modern  Legislation. 

§23.  Conflict  of  Divorce  Laws. 

§24.  Full  Faith  and  Credit  Clause  of  the  Federal  Constitution. 

§25.  Effect  Same  as  in  State  where  Judgment  is  Rendered. 

§26.  Written  Laws  of  Foreign  Countries. — How  Proven. 

§14.    Foreign  Marriages. 

As  a  general  rule,  so  far  as  concerns  the  form  of  the  cere- 
mony, the  validity  of  a  marriage  between  persons  domiciled  in 
the  jurisdiction  in  which  the  marriage  is  celebrated,  or  between 
persons  not  so  domiciled,  is  governed  by  the  law  of  the  place 
where  the  marriage  is  celebrated,  and  if  valid  there  it  is  valid 
everywhere.1  But  to  entitle  a  marriage,  performed  according  to 

1.   The  following  cases  arranged  ley,  3  A.  K.  Marsh   (Ky.)   368; 

as  to  jurisdiction:  Kleinke   v.   Noonan,   20   Ky.   L. 

England.     Brook  v.   Brook,   9  H.  R.  305,  81  S.  W.  241. 

L.  Cas.  193.  Maine.     Hiram  v.  Pierce,  54  Me. 

Canada.     Burocher   v.    Degre,    20  367. 

Quebec  Sup.  Ct.  456.  Maryland.    Redgrave,  38  Md.  93; 

United      States.       Patterson      v.  Jackson  v.  Jackson,  80  Md.  176, 

Gaines,   6  How.   550,    12  L.  Ed.  82  Md.  17,  30  Atl.  752,  33  Atl. 

553.  317. 

Alabama.      Wall    v.    Williamson,  Massachusetts.     Medway  v.  Need- 
Ala.  48;  Wells  v.  Thompson,  13  ham,   16   Mass.    167;    Sutton   v. 

Ala.  793.  Warren,   10   Met.    (Mass.)    452; 

California.     Pearson   v.   Pearson,  Commonwealth     v.     Lane,     113 

51  Cal.  120.  Mass.  458. 

Georgia.     Eubanks  v.   Banka,   34  Michigan.     Hutchins  v.   Kimmel, 

Ga.  415.  31  Mich.  126;  Kobogum  v.  Iron 

Kentucky.     Dumarsley    v.    Fish-  Co.  76  Mich.  498;  43  N.  W.  R. 

13 


115 


CONFLICT  OP   LAWS 


a  custom  of  one  jurisdiction,  to  be  recognized  in  another,  both 
parties  must  have  been  within  the  former  jurisdiction  at  the 
time"  of  the  celebration  of  the  marriage.  Thus,  though  Chinese 
custom  and  Chinese  law  are  said  to  permit  marriages  by  proxy, 
yet  a  Chinaman  domiciled  and  actually  in  the  United  States, 
having  married  by  proxy  a  girl  in  China  according  to  the 
Chinese  custom,  the  marriage  was  held  invalid  in  the  United 
States,  although  recognized  as  valid  by  Chinese  law  and  cus- 
tom.2 

On  the  other  hand,  if  a  marriage  is  invalid  in  the  jurisdiction 
in  which  it  is  celebrated,  as  a  general  rule  it  will  be  held 
invalid  elsewhere.3  But  it  has  sometimes  been  held  that  this 
rule  does  not  apply  to  nonresidents  and  temporary  sojourners 
in  the  place  where  the  marriage  ceremony  is  performed,  who 
marry  with  the  intention  of  returning  to  the  place  of  their 
residence.4 

§15.    Marriages  against  Public  Policy  and  Morality. 
Where  in  one  jurisdiction  marriages  between  certain  persons 


602;  People  v.  Loomis,  106 
Mich.  250,  64  N.  W.  R.  18. 

Minnesota.  McHenry  v.  Bracken, 
93  Minn.  510,  101  N.  W.  R. 
960. 

Missouri.  Johnson  v.  Johnson, 
30  Mo.  72  (Indian  Marriage) ; 
Boyer  v.  Diveley,  58  Mo.  510 
(Indian  Marriage) ;  LaRivi,er 
v.  LaRivier,  97  Mo.  (Indian 
Marriage),  10  S.  W.  R.  840. 

Nebraska.  Gibson  v.  Gibson,  24 
Neb.  394;  Hills  v.  State,  61 
Neb.  589,  85  N.  W.  R.  836. 

New  Hampshire.  True  v.  Ran- 
ney,  21  N.  H.  52. 

New  Jersey.  Harral  v.  Harral, 
39  N.  J.  Eq.  279;  Clark  v.  Clark, 
52  N.  J.  Eq.  650,  30  Atl.  R.  81; 
Smith  v.  Smith,  52  N.  J.  L.  207, 
19  Atl.  R.  255. 

New  York.  Wolrich  v.  Freeman, 
71  N.  Y.  601. 

North  Carolina.  State  v.  Ross,  76 
N.  C.  242;  State  v.  Behrman, 
114  N.  C.  797,  19  S.  E.  R.  220. 

Ohio.  Evans  v.  Reynolds,  32 
Ohio  St.  163. 


Pennsylvania.     Phillips  v.  Gregg, 

10  Watts    (Pa.)    158. 
Tennessee.     Morgan  v.  McGhee,  5 

Humph.     (Tenn.)     13     (Indian 

Marriage). 
Vermont.     State   v.    Shattuck,   69 

Vt.  403,  28  Atl.  81. 

2.  In   re   Lum   Lin     Ying,     58 
Fed.  R.  682. 

3.  McDeed   v.    McDeed,    67    111. 
545  (Minors)  ;  Simmonds  v.  Allen, 
33  111.  App.  512;   Carrale  v.  Peo- 
ple, 177  111.  219   (Minors) ;  Roche 
v.      Washington,      19      Ind.      53; 
Blaisdell    v.    Brickum,    139    Mass. 
250    (Uncle    and    niece)    1    N.    E. 
R.   281;   Hutchins  v.  Kimmell,  31 
Mich.   126;    Smith  v.   Woodworth, 
44  Barb.    (N.  Y.)    198;    Matter  of 
Hall,  11  Atl.  R.  £21;  Weinberg  v. 
State,  25  Wis.  370. 

4.  Loring      v.      Thorndike,      5 
Allen  (Mass.)  257;  Clark  v.  Clark, 
52   N.   J.   Eq.    650    (Marriage  per- 
formed   in    Indian    Territory)    30 
Atl.  R.  81;   Wilcox   v.  Wilcox,  46 
Hun    (N.  Y.)   32. 


14 


i\«  i:sTid(  s   AMI   roi.yuA.Mors    M  Ai;i;iA<;i:s  §16 


are  prohibited  by  public  policy  and  the  law  as  offensive  to  the 
morals  and  good  order  of  society,  siirh  marriages.  performed 
in  another  jurisdiction.  will  not  be  deemed  valid  therein, 
though  they  may  be  valid  by  the  law  of  the  state  or  country 
where  they  are  celebrated,  and  though  the  parties  to  the  marri- 
age are  there  domiciled.5  In  the  state  of  Tennessee  this  rule  has 
been  applied  to  marriages  between  white  persons  and  negroes.* 
The  Tennessee  rule,  however,  making  marriages  between  white 
persons  and  negroes  invalid,  even  though  contracted  in  good 
faith,  in  a  state  or  country  where  such  marriages  are  per- 
mitted and  are  valid,  does  not  seem  to  be  followed  in  many  of 
the  states,  nor  in  Christian  nations  in  general.7 

§16.    Incestuous  and  Polygamous  Marriages. 

While  the  rule  upholding  in  one  jurisdiction  the  validity  of 
a  marriage  of  nonresidents  which  is  valid  in  the  jurisdiction 
where  it  is  celebrated,  has  been  applied  to  marriages  between 
persons  who  by  reason  of  consanguinity  or  affinity  are  incom- 
petent to  marry,8  still  if  a  marriage  is  incestuous  or  polygam- 
ous, according  to  the  general  opinion  of  Christendom,  though 
valid  in  the  jurisdiction  where  celebrated,  it  will  not  be  held 
valid  in  those  jurisdictions  where  such  marriages  are  pro- 
hibited.9 

This  exception  to  the  general  rule  is  a  most  salutary  one 
and  seems  to  have  come  into  use  for  the  necessary  protection 
of  society  and  good  morals.  Its  operation  and  effect  is  upon 
the  very  foundation  of  society,  public  policy  and  morality. 
Without  this  beneficent  exception,  the  Turk  or  Mohammedan. 
with  his  numerous  wives,  *might  establish  his  harem  at  the  very 

5.  Pennegar  v.  State,  87  Tenn.  vania)  ;   State  v.  Brown,  47  Ohio 
244.  St.    109    (uncle   and  niece)  ;   Mar- 

6.  State      v.      Bell,      7      BaXt.  tin   v.   Martin,   54  W.  Va.   301,   1 
(Tenn.)    9;    Pennegar     v.     State,  Am.  &  Eng.  Ann.  Cas.  612   (aunt 
87  Tenn.  244;   State  v.   Tutty,  41  and  nephew). 

Fed.  R.  753.  9.     Campbelle    v.    Crampton,    2 

7.  State  v.  Ross,  76  N.  C.  242;  Fed.  R.  426;  Stimson  v.  Gage,  17 
Pearson  v.   Pearson,  51  Cal.  120.  Civ.  Stat.  S.  C.  (1893)  Sec.  2157; 

8.  Greenwood     v.     Curtis,     6  1    Stimpson's    American    Statute 
Mass.  338;    Button  v.  Warren,  10  B.    Mon.    (Ky.)    193;    Jackson   v. 
Met.     (Mass.)     451      (aunt      and  Jackson,    82   Md.    29;    Greenwood 
nephew).     But  see  U.  S.  v.  Rog-  v.   Curtis,    6   Mass.   358;    Medway 
ers,   109   Fed.    R.    886     (Russian  v.   Needham,   16   Mass.    157;    Sut- 
marriage     between      uncle      and  ton   v.  Warren,   10   Met.    (Mass.) 
niece    held    invalid    in    Pennsyl-  451;  True  v.  Ranney,  21  N.  H.  52. 

16 


§17  CONFLICT  OB  LAWS 

doors  of  our  Christian  churches,  and  we  would  be  without 
remedy.  We  might  have  among  us  a  father  living  with  his 
daughter,  a  son  living  with  his  mother,  and  a  brother  living 
with  his  sister,  in  lawful  wedlock,  because  they  had  formed 
that  relation  in  a  country  where  such  unions  were  lawful. 

§17.    Incestuous  Marriages. — Void  or  Voidable. 

In  England,  and  in  many  of  the  states  of  the  Union,  mar- 
riages between  relations  of  the  forbidden  degrees  are  void.10 
In  other  states  such  marriages  are  treated  as  voidable  only.11 
Whether  inarriages  of  persons  within  the  prohibited  degrees  of 
consanguinity  are  absolutely  void  or  are  merely  voidable  is 
frequently  determined  by  statutory  enactment.  The  earlier 
rule  seems  to  have  been  that  such  marriages  were  voidable  only, 
and  could  not  be  attacked  except  during  the  lifetime  of  the 
parties,  and  then  only  by  the  parties  themselves  or  one  of 
them.12  In  England,  however,  as  early  as  1835,  such  marriages 
were  held  to  be  null  and  void,  and  not  merely  voidable.13  The 
early  American  cases  quite  generally  held  marriages  within  the 
prohibited  degrees  to  be  merely  voidable.14  But  the  modern 
tendency  seems  to  be  to  hold  such  marriages  void,  and  many 
states  have  adopted  statutory  regulations  definitely  establish- 
ing this  rule.15 

In  Michigan,  all  marriages  which  are  prohibited  on  account 
of  consanguinity  or  affinity  between  the  parties  are  absolutely 
void  without  any  decree  of  divorce  or  other  legal  process,  but 
the  issue  of  such  marriages  is  deemed  legitimate.16  In  New 
Hampshire,  marriages  between  cousins  are  considered  inces- 
tuous, and  are  held  to  be  void  without  the  necessity  of  any 
decree  of  divorce  or  other  legal  proceeding  to  terminate  them.17 
In  Pennsylvania  it  appears  that  such  marriages  are  only  void- 

10.  19    Am.   &   Bng.    Ency.    of  v.  Deinzer,  45  N.  J.  Eq.  485;  Bow- 
Law,  2nd  Ed.  1175.  ers   v.   Bowers,    10   Rich.   Eq.    (S. 

11.  Martin    v.    Martin,    54    W.  C.)    551;   Parker's  Appeal,  44  Pa. 
Va.  301,  1  Am.  &  Eng.  Ann.  Gas.  St.  309.  ,. 

612.  15.     Stat.  Ky.   1894,   Sec.   2096; 

12.  Bowers  v.  Bowers,  10  Rich.      Law,  Sec.  6112.  \ 

Eq.   (S.  C.)   551.  16.     C.  L.  '15,   (11392);   Howell 

13.  Brook   v.    Brook,    9   H.    L.       (2nd  Ed.)   §11453. 

Gas.  233.  17.     Hayes  v.  Rollins,  68  N.  H. 

14.  Adkins   v.   Holmes,    2    Ind.  191,   44  Atl.   R.    176;    Blaisdell  v. 
197;     Stevenson     v.    Gray,    7    B.  Buckum,    139   Mass.,    1   N.   E.   R. 
Mon.    (Ky.)    215;    Sutton  v.  War-  281,    construing    New    Hampshire 
ren,  10  Met.   (Mass.)   451;  Boylan  statute. 

16 


\\M   I.MKNT   OP   VOIDAr.U:    MARRIAGE-  §18 

able.18  In  Louisiana  it  1ms  hern  held  that  although  a  marriage 
between  a  man  and  his  niece  is  null  and  void,  because  con- 
tracted in  violation  of  a  law  prohibiting  such  unions,  yet  where 
one  of  the  spouses  acted  in  good  faith,  it  will  have  for  certain 
purposes  the  effect  of  a  legal  marriage*  so  far  as  concerns  such 
spouse  and  the  issue  of  the  marriage.19 

From  these  cases,  and  many  more  which  might  be  cited,  it 
clearly  appears  that  the  laws  of  the  several  states  are  widely 
(lillci-ent  on  the  subject  of  whether  certain  marriages  are  void 
or  only  voidable.  This  condition  of  the  law,  and  the  conflicting 
statutory  provisions  of  the  several  states,  emphasize  the  neces- 
sity of  general  uniform  rules  by  which  it  may  be  determined 
whether  a  particular  marriage  is  valid,  void  or  voidable.  It 
seems  to  have  been  generally  determined  that  the  safest  and 
best  rule  to  follow,  the  one  which  will  have  the  best  effect  for 
the  protection  of  society  and  public  morals,  is  to  hold,  subject 
to  the  exceptions  already  noted,  that  a  marriage  which  is  valid 
in  the  jurisdiction  where  it  is  solemnized  is  valid  everywhere; 
that  one  which  ie  void  by  the  law  of  the  state  where  it  is 
celebrated  is  void  everywhere,  and  that  one  which  is  'voidable 
merely  by  the  law  of  the  state  where  it  is  celebrated  is  valid 
everywhere  until  it  is  annulled  by  a  tribunal  of  competent 
jurisdiction  during  the  lifetime  of  the  parties. 

§18.    Who  May  Ask  for  Annulment  of  Voidable  Marriage. 

There  can  be  no  doubt  of  the  right  of  the  injured  innocent 
party  to  a  voidable  marriage  to  maintain  an  action  for  the 
annulment  of  such  marriage.  The  difficulty  arises  when  both 
parties  entered  into  the  relation  'knowingly.  This  difficulty 
presents  itself  most  often,  and  perhaps  only,  in  those  cases 
where  by  the  law  of  the  jurisdiction  where  the  marriage  was 
celebrated  the  relationship  of  the  parties  is  such  that  the 
marriage  is  prohibited,  but  still  is  not  absolutely  void,  but 
merely  voidable.  Actions  for  the  annulment  of  a  voidable 
marriage,  as  well  as  divorce  actions,  are  almost  universally 
brought  and  disposed  of  in  courts  of  equity  or  courts  having 
equitable  jurisdiction.  It  has  often  been  stated,  and  it  is  a 
general  rule,  that  one  who  comes  into  a  court  of  equity,  seeking 
the  aid  of  the  equitable  power  of  the  court,  must  come  with 

18.  Person's  appeal,  44  Pa.  St.  19.  Burssier's  Succession,  41 
309;  Walter's  Appeal,  70  Pa.  St.  La.  Ann.  218;  Revised  Civil  Code, 
392.  La.  (1900)  Art.  117-118. 

17 


118  CONFLICT  Oli 


LAWS 


clean  hands,  and  it  would  seem  that  this  cannot  be  done  when 
both  parties  are  equally  unclean.  While  the  laws  of  the  dif- 
ferent states  are  notably  in  conflict,  as  to  the  application  of 
this  rule  to  proceedings  for  the  annulment  of  voidable  mar- 
riages, the  better  and  more  reasonable  view  seems  to  be  that 
such  a  case  is  an  exception  to  the  equitable^maxim  above  men- 
tioned. For  instance,  in  Pennsylvania  marriages  between 
uncle  and  niece  are  prohibited,  but  such  marriages  are  by  the 
law  of  that  state  not  absolutely  void,  but  merely  voidable. 
They  are  valid  to  a  certain  extent  until  annulled  by  a  court  of 
competent  jurisdiction.  By  the  laws  of  the  state  of  Michigan 
such  marriages  are  absolutely  void  without  any  decree  of 
divorce  or  other  legal  process.  But  the  marriage  being  lawful 
in  the  state  where  it  was  celebrated  until  it  is  annulled  by  a 
court  of  competent  jurisdiction,  it  must  be  treated  as  valid  for 
certain  purposes  everywhere  so  long  as  it  remains  not  so 
annulled.  Now,  suppose  a  man  marries  his  niece  in  the  state 
of  Pennsylvania,  cohabits  with  her  there,  and  then  removes 
with  her  to  the  state  of  Michigan  and  they  there  acquire  a 
domicile  in  good  faith.  If  the  marriage  had  been  celebrated  in 
Michigan  it  would  be  absolutely  void,  and  cohabitation  would 
subject  the  parties  to  a  criminal  prosecution,  but  being  valid, 
until  annulled  in  the  state  where  it  was  celebrated,  it  must  be 
so  treated  in  Michigan.  When  the  parties  have  acquired  a 
domicile  in  the  state  of  Michigan,  in  good  faith,  will  a  court 
of  equity  entertain  a  bill  to  annul  the  marriage  on  the  appli- 
cation of  one  of  them? 

This  is  a  troublesome  question,  and  on  first  impression  it 
would  seem  that  the  equitable  maxim  above  mentioned  would 
demand  an  answer  in  the  negative.  But  when  we  stop  to  con- 
sider that  in  all  divorce  and  annulment  cases  there  are  at  least 
three  interested  parties,  the  plaintiff,  the  defendant,  and  the 
public,  a  somewhat  different  view  is  presented.  The  parties 
are  living  in  a  relation  not  only  unlawful  according  to  the  laws 
of  the  state  where  they  reside,  but  abhorrent  to  good  morals. 
Their  influence  and  example  is  bad.  Their  lives  are  unclean. 
Neither  can  come  before  a  court  of  equity  with  clean  hands. 
But  if  one  or  even  both  of  them  desire  to  dissolve  the  unlawful 
and  immoral  relation ;  if  they  desire  to  go  and  sin  no  more  and 
not  permit  their  uncleanliness  and  immorality  to  continue  a 
stench  in  the  nostrils  of  the  public  and  a  menace  to  public 

18 


MAKKIA<a:    AFTER    DIVORCE    GRANTED  §19 

morals,   it   \\-onld  seem  that  they  ought  to  be  permitted  to 
do  so.20 

§19.    Marriage  After  Divorce  Granted. 

A  (pics) ion  which  often  arises  because  of  the  conflicting 
marriage  :iml  divorce  laws  of  the  several  states,  and  which 
deserves  notice  and  careful  attention,  is  under  what  circum- 
stances a  decree  of  divorce  becomes  effectual  to  the  extent  that 
the  parties  or  one  of  them  may  marry  attain.  In  some  states 
the  trial  court,  upon  granting  a  decree  dissolving  a  marriage, 
is  given  a  discretion  to  prohibit  both  or  either  of  the  parties 
from  marrying  again  for  a  period  of  lime  stated  in  the  decree, 
not  longer  than  the  period  lixed  by  the  statute.  In  other  states 
the  statute  fixes  the  time  within  which  neither  party  is  per- 
mitted to  many  again.  In  still  others  the  statute  prohibits 
the  guilty  party  from  marrying  again  during  a  stated  period. 
In  others  the  statute  prohibits  both  parties  from  marrying 
again  until  after  the  time  for  appealing  from  the  decree  has 
expired,  and  in  case  an  appeal  is  taken  neither  party  is  per- 
mitted to  marry  again  until  after  the  appeal  is  disposed  of  in 
the  appellate  court. 

In  some  states  the  decree  of  divorce  does  not  become  absolute 
until  the^expiration  of  a  specified  period  after  it  is  entered, 
during  which  time  both  parties  are  forbidden  to  marry  again. 
In  several  the  first  decree  is  nisi,  and  an  absolute  divorce  is 
not  granted  until  the  plaintiff  makes  a  second  application  in 
the  manner  pointed  out  by  the  statute.  In  others  the  order 
iiixi  becomes  absolute  automatically  upon  the  expiration  of  the 
time  limited,  unless  vacated  upon  the  application  of  one  of  the 
parties  before  the  expiration  of  the  time  limit. 

In  a  number  of  states  either  party  may  marry  again  as  soon 
as  the  decree  is  signed  and  entered  in  the  records  of  the  court, 
at  the  peril,  however,  of  the  decree  being  reversed  by  an  appel- 
late court  in  case  an  appeal  is  taken.21  These  widely  different 
and  conflicting  laws  frequently  give  rise  to  difficult  and  perplex- 

20.     Martin    v.    Martin,    54    W.  R.  747,  21  Am.  St.  R.  790;  16  Am. 

Va.  301,  46  S.  E.  R.   120,  Am.  &  &   Eng.    Ency.    of  Law,    2nd.   Ed. 

Eng.    Ann.    Cas.    612;    19    Am.    &  134. 

Eng.  Ency.  of  Law,  2nd  Ed.  1212;          21.     On    this    subject    see    part 

Commonwealth  v.  Lane,  113  Mass.  3,  title  Divorce  Laws  and  Proced- 

458,    18    Am.    R.    509;     State    v.  ure  of  Different  States. 
Brown,  47  Ohio  St.  102,  23  N.  E. 

19 


§20  CONFLICT  OF  LAWS 

ing  questions,  and  emphasize  the  necessity  for  uniform  mar- 
riage and  divorce  laws  in  the  different  states  and  territories. 

§20.    Marriage  During  Prohibited  Period. 

In  states  where  the  parties  are  forbidden  by  statute  to  marry 
again  during  the  time  for  taking  an  appeal,  it  has  been  held 
that  while  the  marriage  ceremony  celebrated  during  that  period 
is  a  nullity,  still,  if,  after  the  impediment  is  removed  by  the 
expiration  of  the  time  for  appealing  without  an  appeal  having 
been  taken,  the  parties  continue  cohabitation  in  good  faith, 
agreeing  to  live  and  cohabit  together  as  husband  and  wife,  and 
actually  sustain  that  relation  to  each  other,  they  become  law- 
fully wedded.22  This  rule,  however,  appears  applicable  only  in 
those  jurisdictions  where,  in  the  absence  of  any  legal  impedi- 
ment, the  only  essential  of  a  valid  marriage  is  the  free  consent 
and  agreement  of  the  parties  to  live  together  in  the  marriage 
relation. 

There  seems  to  be  a  distinction  drawn  between  statutes  for- 
bidding a  second  marriage  during  a  specified  period  after  a 
divorce  or  during  the  time  for  appeal  or  error  and  imposing  a 
penalty  therefor,  and  those  which  declare  that  the  parties  shall 
not  be  capable  of  contracting  the  second  marriage  but  which 
do  not  impose  a  penalty.  In  the  first  instance  the  marriage  is 
merely  voidable,  and  in  the  second  absolutely  void.23 

In  Kansas,  as  well  as  in  Nebraska,  the  statute  apparently 
forbids  the  marriage  but  does  not  disqualify  the  parties,  and,  in 
accordance  with  the  distinction  just  pointed  out,  it  is  there 
held  that  the  second  marriage  is  not  void,  but  only  voidable.24 
In  Kentucky,  under  a  statute  declaring  that  the  parties  to  a 
decree  of  divorce  shall  not  be  authorized  to  contract  matrimony 
within  two  years,  but  not  imposing  a  penalty  for  p,  second 
marriage  within  that  time,  it  is  held  that  the  second  marriage 
if  contracted  is  void.25 

In  a  number  of  the  states  of  this  country,  common  law  mar- 
riages, or,  as  they  are  sometimes  called,  informal  marriages, 
are  recognized  as  valid,  and  even  statutes  requiring  a  marriage 
license  are  held  to  be  directory  merely  and  not  mandatory.  In 

22.  Eaton    v.    Eaton,     66    Neb.          24.     Vonn  v.  Conn,  2  Kan.  App. 
676,    92   N.    W.   R.   995,    1   Am.   &      419. 

Eng.  Ann.  Cas.  199.  25.     Cox  v.   Combs,   8   B.   Mon, 

23.  State   v.   Walker,    36   Kan.       (Ky.)   231. 
297,  13  Pacv  R.  279. 

20 


MARRIAGE    DURING    PROHIBITED   PERIOD 


§20 


such  si;ii«-s  the  rule  of  law  is,  that  in  the  absence  of  anjr  legal 
impediment  the  only  essential  of  a  valid  marriage  is  the  free 
agreement  and  consent  of  the  parties  to  live  together  in  the 
marriage  relation.  But  such  agreement  and  consent  must  be 
executed  by  actual  cohabitation,  and  not  remain  merely  execu- 
tory, before  the  marriage  relation  can  be  said  to  exist.28 


26. 
Georgia.      Askew    v.    Dupree,    30 

Ga.  173. 
Kansas.     State  v.  Walker,  36  Kan. 

297,  13  Pac.  R.  279. 
Louisiana.     Holmes  v.  Holmes,  6 

La.  463. 
Maine.     Gardiner   v.   Manchester, 

88  Me.  249,  33  Atl.  R.  770. 
Mississippi.   Hargroves  v.  Thomp- 
son, 31  Miss.  211. 
Nebraska.     Hoggin  v.  Hoggin,  35 

Neb.   375,  53  N.  W.  R.  209,  53 

N.  W.  R.  209. 

North    Carolina.      State    v.    Rob- 
bins,  6  Ird.  L.  (N.  C.)  23;  State 

v.  Parker,  106  N.  C.  711,  11  S. 

E.  R.  517. 
Tennessee.     Johnson  v.  Johnson, 

1  Coldw.  (Tenn.)  626. 
Vermont.      Overseers    of   Poor   v. 

Overseers  of  Poor,  2  Vt.  151. 

It  is  also  a  well  settled  rule  in 
many  of  the  states  that  it  will 
be  presumed,  concerning  inform 
mal  or  common  law  marriages, 
that  parties  cohabiting  as  hus- 
band and  wife,  and  acknowledg- 
ing themselves  to  be  such,  are 
legally  married. 
Alabama.  Ford  v.  Ford,  4  Ala, 

142. 
California.    Matter  of  Rubino,  116 

Cal.   304,  48  Pac.  R.   127. 
Connecticut.     Budlington  v.  Mun- 

son,  33  Conn.  481. 
Illinois.     Miller  v.  White,  80  111. 

580. 
Indiana.     Trimble  v.   Trimble,   2 

Ind.  76. 
Iowa.    Barton  v.  Barton,  48  Iowa, 

697. 
Kansas.    Shorten  v.  Judd,  60  Kan. 

73,  55  Pac.  R.  286.       . 
Kentucky.     Taylor  v.  Shanwell,  4 


B.  Mon.  (Ky.)   575. 
Louisiana.     Bathrick  v.  Bathrick, 

45  La.  Ann.  1382. 
Maine.     Taylor    v.    Robinson,    29 

Me.  323. 

Massachusetts.    Commonwealth  v. 
-Littlejohn,  15  Mass.  163. 
Maryland.      Jackson    v.    Jackson, 

80  Md.  176,  30  Atl.  R.  752. 
Michigan.     Hoffman   v.    Simpson, 

110  Mich.  133,  67  N.  W.  R.  1107. 
Mississippi.     Spears  v.  Burton,  31 

Miss.  547. 
Missouri.    Adair  v.  Mette,  156  Mo. 

512,  575  S.  W.  R.  551. 
Montana.       Soyer     v.     Gt.     Falls 

Water  Co.,  15  Mont.  1,  37  Pac. 

R.  838. 
New    Hampshire.      Emerson     v. 

Shaw,   56   N.  H.   418. 
New  Jersey.     Matter  of  Wallace, 

49  N.  J.  Eq.  531,  25  Atl.  R.  260. 
New    York.      Bullock    v.    Bullock, 

85  Hun    (N.  Y.)   373,  32  N.  Y. 

S.  1009. 
North  Carolina'.   Weaver  v.  Cryer, 

1  Dev.  L.  (N.  C.)  337. 
Ohio.     Houpt   v.   Houpt,    5    Ohio 

539. 

Pennsylvania.     Burning  v.   Hast- 
ings, 183  Pa.  St.  210,  38  Atl.  R. 

627. 
Rhode  Island.     Williams  v.  Her- 

rick,   21    R.   I.   401,   43   Atl.   R. 

1036. 
Texas.    Wright  v.  Wright,  6  Tex. 

3. 
Vermont.     Northfield  v.  Vershire, 

33  Vt.  110. 
Virginia.     Eldred    v.   'Eldred,    97 

Va.  606,  34  S.  E.  R.  477. 
West     Virginia.       Hitchcock      v. 

Hitchcock,  2  W.  Va.  235. 
Wisconsin.    Thompson  v.  Nimms, 

83  Wis.  261,  53  N.  W.  R.  502. 


21 


§21  CONFLICT  OP  LAWS 

§21.    Protection    of    Injured   Party    and    Offspring    of   Illegal 
Marriage. 

While  it  is  undoubtedly  true  that  there  is  much  conflict  and 
confusion  in  the  authorities  on  this  subject,  both  sound  reason- 
ing and  authority  appear  to  sustain  the  position  that  dis- 
obedience of  a  provision  in  a  decree  of  divorce  prohibiting  the 
offender,  under  a  penalty,  from  marrying  again  during  the  life 
of  the  former  spouse,  will  not  make  void  a  subsequent  mar- 
riage in  another  state,  between  the  one  forbidden  and  one  who 
was  ignorant  of  such  provision,  but  such  marriage  will  be 
recognized  for  the  protection  of  the  innocent  party  and  the 
children  of  such  marriage.27  In  Vermont  the  statute  provides 
that  "when  a  marriage  is  dissolved  *****  the  par- 
ties shall  be  deemed  single  and  may  lawfully  marry  again. 
But  it  shall  not  be  lawful  for  the  petitionee  (defendant)  in 
divorce  proceedings  in  which  a  divorce  is  granted  ***** 
to  marry  another  person  than  the -petitioner  for  three  years 
from  the  time  such  divorce  is  granted  unless  the  petitioner  dies 
within  that  time,  in  which  case  the  petitionee  (defendant)  may 
marry  again."28  The  Supreme  Court  of  Vermont  has  held  that 
a  marriage  entered  into  in  violation  of  this  statute  may  be 
annulled  at  the  suit  of  the  innocent  party,  although  the  statute 
does  not  expressly  declare  such  remarriage  to  be  void.29  Much 
of  the  confusion  and  conflict  in  the  authorities  on  this  subject 
apparently  arises  from  a  failure  to  make  the  proper  distinction 
between  void  marriages  and  those  which  the  law  holds  to  be 
only  voidable.  Another  source  of  conflict  may  be  said  to  be 
the  inclination  of  some  courts  to  construe  the  marriage  con- 
tract by  the  same  rules  which  govern  contracts  between  in- 
dividuals, where  no  relation  exists  between  the  parties  other 
than  that  of  promisor  and  promisee,  while  other  courts,  while 
recognizing  marriage  as  based  upon  a  contract  between  the 
parties,  hold  that  the  relation  which  exists  and  is  created  by 
the  marriage  contract  is  something  more  than  that  created  by 
ordinary  contracts.  In  all  'marital  causes  which  the  courts  are 
called  upon  to  adjudicate,  it  should  be  borne  in  mind  that 
there  are  three  parties  in  interest  whose  rights  must  be  re- 
spected and  protected, — the  plaintiff,  the  defendant,  and  the 

27.     Crawford   v.   State,    35    L.  28.     Revised  Laws  of  Vermont, 

R.  A.  (Miss.)   224;  Parker  v.  Bar-  2391. 

ron,  20  Ga.  702,  65  Am.  Dec.  641;  29.     Oviatt  v.   Smith,  68  Vt.  35 

Mason  v.  Mason,  101  Ind.  25.  L.  R.  A.  223,  33  Atl.  R.  769. 

22 


CONFLICT   OF    ltivoi:<  i:    LAWS 

public,  and,  in  some  cases,  the  interests  of  a  fourth  party,  the 
offspring  of  the  marriage,  present  a  just  claim  for  protection 
which  the  court  is  bound  to  recognize. 

§22.     Modern  Legislktion. 

While  tin*  statutes  »>!'  many  states  declare  marriage  t<>  be  a 
civil  conn-act,  many  of  them  recomii/c  the  relation  existing 
between  husband  and  wife  as  something  above  atul  beyond 
ordinary  contract  relations.  In  Michigan  the  legislature  has 
declared  marriage  to  be  a  civil  contract,  to  which  the  free 
consent  <>r  the  parties  contracting  is  essential,  but,  recognizing 
the  marriage  relation  as  embracing  interests  above  those  aris- 
ing from  ordinary  contracts,  it  provides  rernedies  against 
branding  an  innocent  woman  a  concubine  or  harlet,  and  her 
children  as  bastards,  in  those  cases  where  she  has  been  so 
unfortunate  as  to  enter  into  a  relation  which  she  honestly  sup- 
posed was  lawful.  And  even  where  the  parties  both  enter 
into  the  marriage  relation,  "knowing  that  it  is  unlawful  for 
them  to  marry,  and  that  their  marriage  by  the  statute  is  made 
void,  the  issue  of  such  relation  is  treated  as  legitimate,  except 
only  where  one  or  both  of  the  parties  had  a  former  husband  or 
wife  living  at  the  time  the  unlawful  marriage  was  celebrated.31 

§23.     Conflict  of  Divorce  Laws. 

The  divorce  laws  of  the  several  states  present  a  great  variety 
of  conflicting  provisions.  Proceedings  which  result  in  a  valid 
divorce  in  one  state  or  country  may  be  absolutely  void  in  many 
cases  if  had  in  another  state  or  country. 

I  ii  this  country  the  establishment  of  divorce  laws  and  courts, 
as  well  as  methods  of  procedure,  is  under  the  absolute  control 
of  each  state,  and  every  state  in  the  Union,  except  South 
Carolina,  has  established  cotirts,  methods  of  procedure  and 
grounds  for  divorce  which  are  essentially  different  in  each 
state.  The  Congress  of  the  United  States  has  no  power  to 
enact  divorce  laws  in  any  of  the  states,  but  it  has  absolute 
power  over  divorce  laws  in  the  District  of  Columbia,  the  Phil- 
ippines, Guam  and  Alaska,  which  have  no  legislative  bodies, 
and  it  has  enacted  such  laws  for  Alaska  and  the  District  of 

30.  C.  L.  '15,   (11394);   Howell       (2nd)    §11453;   In  re  Fitzgibbons' 
(2nd),  11455.  Est.  162  Mich.  416-421,  127  N.  W. 

31.  C.  L.  '15,   (11392);   Howell      R.  313. 

23 


§24  CONFLICT  OF  LAWS 

Columbia.  The  Congress  has  also  supervisory  power  over 
divorce  laws  which  may  be  enacted  by  the  territorial  legis- 
latures of  Porto  Rico  and  Hawaii. 

§24.    Full  Faith  and  Credit  Clause  of  the  Federal  Constitution. 

The  conflicting  divorce  laws  of  the  several  states  and  the 
different  methods  of  procedure  adopted  make  necessary  some 
uniform  rule  by  which  the  validity  of  divorce  judgments  may 
be  determined.  This  uniformity  is  secured  by  the  federal  con- 
stitution, which  provides  that  "full  faith  and  credit  shall  be 
given  in  each  state  to  the  public  acts,  records  and  judicial 
proceedings  of  every  other  state."32  Under  this  provision  the 
courts  of  each  state  are  bound  to  give  full  faith  and  credit  to 
'  all  valid  judgments  and  decrees  of  the  courts  of  every  other 
state  of  the  Union,  but  this  requirement  does  not  extend  to  the 
giving  of  validity  to  those  proceedings  which  in  themselves  are 
mere  nullities.  It  is  fundamental  in  judicial  proceedings  that 
the  court  assuming  to  act  and  to  render  judgments  must  have 
competent  authority  to  do  so  in  the  particular  case,  and  when 
this  authority  is  wanting,  whatever  is  done  is  not  judicial  and 
cannot  be  protected  by  the  Federal  constitution.33  And  if  the 
record,  by  its  recitals,  makes  a  prima  facie  case  of  jurisdiction, 
no  one  in  another  state  or  country  is  concluded  thereby,  but  it 
may  be  shown  what  the  real  fact  was,  and  thus  disprove  the 
authority  for  making  such  record.34 

§25.    Effect  Same  as  in  State  where  Judgment  is  Rendered. 

A  judgment  or  decree  of  a  court  of  one  state,  when  sued 
upon,  introduced  in  evidence,  or  pleaded  in  another  state,  is 
entitled  to  receive  the  same  faith  and  credit  that  is  accorded  to 

it  in  the  state  where  rendered,  so  that  if  valid  and  conclusive 

t 

32.  Constitution  of  the  United  374;    Thompson    v.    Emmert,    15, 
States,  Art.  IV.  Sec.  1.  111.   416;    Marx  v.   Force,   51   Mo. 

33.  Reed    v.    Reed,    52    Mich.  69,  11  Am.  R.  200;  Reel  v.  Elder, 
117,  17  N.  W.  R.  720.  62    Pa.    St.    308,    1    Am.    R.    414; 

34.  Thompson  v.  Whitman,  18  Pennywit  v.  Foote,  27    Ohio    St. 
Wall    (U.  S.)   457,  21  L.  Ed.  897;  600,    22    Am.    R.    340;    Gilman    v. 
Knowles    v.     Gas    Light    Co.     19  Gilman,  126  Mass.  26,  30  Am.  R. 
Wall.    (U.    S.)    58,  22   L.   Ed.   70;  646;    Bowen  v.   Huston,   30    Grat. 
Barrett  v.  Knight,  1  Mass.  401,  2  266,    32   Am.   R.     673;     Eaton    v. 
Am.  Dec.  36;    Shumway    v.    Still-  Hasty,  6  Neb.  419,  29  Am.  R.  365. 
man,   4   Cow.   292,    15    Am.    Dec. 

24 


STATi:    W  1 1  KICK    .U  IH; MEM'   IS   KKM'I'UKM 


in  that  state,  it  is  valid  and  conclusive  in  all  other  states.85  But 
a  judgment  from  another  Mate  is  entitled  to  no  greater  effect 
or  final! I  v  ilian  would  be  accorded  to  it  in  the  state  where  it 
was  rendered,  and  therefore,  if  it  would  there  be  inconclusive, 
impeachable,  or  reviewable,  it  will  be  awarded  no  greater  con- 
sideration or.  measure  of  finality  in  other  states.-10  The  validity 
and  Hlrct  »>l  any  judgment  or  judicial  decree,  therefore,  must 
be  determined  by  referring  to  the  laws  of  the  state  where  it 
was  rendered,  and  for  this  purpose  it  is  held  in  some  of  the 
states  that  the  courts  of  one  state  will  take  judicial  notice  of 


35.    These  cases  arranged  as  to 

Jurisdiction : 

Connecticut.  Bank  of  North 
America  v.  Wheeler,  28  Conn. 
433,  73  Am.  Dec.  683. 

Georgia.  Tompkins  v.  Cooper, 
97  Ga.  633,  25  S.  E.  R.  247. 

Illinois.  McFulton  v.  Long,  13 
111.  486,  54  Am.  Dect  449;  Kim- 
mel  v.  Schultz,  1  111.  169;  New- 
man v.  Greely  St.  Bank,  92  111. 
App.  638. 

Indiana.  Davis  v.  Lane,  2  Ind. 
548,  54  Am.  Dec.  458. 

Iowa.  Miller  Brewing  Co.  v.  Capi- 
tal Ins.  Co.,  Ill  Iowa  590,  82 
N.  W.  R.  1023,  82  Am.  St.  R. 
529. 

Kansas.  R.  R.  Co.  v.  Campbelle, 
5  Kan.  App.  423,  49  Pac.  R.  321. 

Kentucky.  Galloway  v.  Glenn, 
105  Ky.  648,  49  S.  W.  R.  440, 
20  Ky.  L.  R.  1447;  Fletcher  v. 
Ferris,  9  Dana  372,  35  Am.  Dec. 
143. 

Maine.  Lambertson  v.  Grant,  94 
Me.  508,  48  Atl.  R.  127. 

Maryland.  U.  S.  Bank '  v.  Mer- 
chants Ban*,  7  Gill  415;  Bren- 
gal  v.  McClellan,  7  Gill  &  J. 
434. 

Massachusetts.  Vanorman  v. 
Gordon,  172  Mass.  576,  53  N.  E. 
R.  267,  70  Am.  St.  R.  309,  44  L. 
R.  A.  840. 

Missouri.  Tootle  v.  Buckingham, 
190  Mo.  183,  88  S.  W.  R.  610; 
Hudson  v.  Kimberley  Pub.  Co. 
v.  Young,  90  Mo.  App.  61. 


New  Jersey.  Gulick  v.  Loder,  13 
N.  J.  X,.  68,  23  Am.  Dec.  711; 
Gibbons  v.  Livingston,  6  N.  J. 
L.  236;  Orient  Ins.  Co.  v.  Ru- 
dolph, 61  Atl.  R.  26. 

New  York.  Blacks  Case,  4  Abb. 
Prac.  R.  162;  Green  v.  VanBus- 
kirk,  How.  Prac.  R.  52. 

Ohio.   Arndt  v.  Arndt,  15  Ohio  33; 
'Pelton  v.  Pelton,  13  Ohio  209, 
42  Am.  Dec.  197. 

Pennsylvania.  Levison  v.  Blum- 
enthall,  25  Phila.  Supr.  Ct.  R. 
55;  Curran  v.  Rowley,  2  Pa.  Co. 
Ct.  R.  539;  R.  R.  Co.  v.  Mercer, 
11  Phila.  226. 

Virginia.  Piedemont  &  Co.  Life 
Ins.  Co.  v.  Ray,  75  Va.  821;  Bu- 
ford  v.  Buford,  4  Munf.  241,  6 
Am.  Dec.  511. 

Washington.  Clark  v.  Ettinge,  38 
Wash.  376,  80  Pac.  R.  556. 

West  Virginia.  Wells-Stone  Mer- 
cantile Co.  v.  Truax,  44  W.  Va, 
538,  29  S.  E.  R.  1006. 

Wisconsin.  Parker  v.  Stoughton 
Mill  Co.  91  Wis.  174,  64  N.  W. 
R.  751,  51  Am.  St.  R.  881. 

In i ted  States.  Harris  v.  Balk, 
192  U.  S.  215,  25  Sup.  Ct.  R. 
625,  49  L.  Ed.  1023;  Christina 
v.  Russell,  5  Wall.  292,  18  L. 
Ed.  475;  Mills  v.  Durye,  7 
Cranch,  481,  3  L.  Ed..  411. 
36.  These  cases  arranged  as 

to  jurisdiction: 

Alabama.  Peet  v.  Hatcher,  112 
Ala.  514,  21  So.  R.  711,  57  Am. 
St.  R.  45. 


25 


525 


CONFLICT  OP  LAWS 


the  laws  of  another  state.37  But  this  doctrine  is  not  generally 
adopted,  and  it  appears  to  be  directly  in  conflict  with  the 
decisions  of  the  Supreme  Court  of  the  United  States  and  those 
of  the  courts  of  last  resort  of  most  of  the  states.  The  better 
and  i  more  consistent  rule  seems  to  be  that  the  laws  of  a  foreign 
state  must  be  proved  as  facts,  and  if  there  is  no  evidence  V)f 
the  laws  of  the  state  where  the  judgment  was  rendered,  the 
court  where  it  is  sought  to  be  enforced  will  presume  that  those 
laws  are  the  same  as  the  laws  of  its  own  state,  and  will  give 
effect  to  the  judgment  accordingly.38 

While,  as  we  have  seen,  some  of  the  state  courts  have  held 
that  in  order  to  give  effect  to  the  full  faith  and  credit  clause, 
they  will  take  judicial  notice  of  the  laws  of  other  states,  this 
view  has  been  emphatically  repudiated  by  the  Supreme  Court 


Arkansas.     Barkman  v.   Hopkins, 

11  Ark.  157. 

Connecticut.    Wood  v.  Watkinson, 

17  Conn.  500,  44  Am.  Dec.  652. 
Illinois.     Newman   v.    Greely    St. 

Bank,  52  111.  App.  638. 
Louisiana.        Ahlefeldt,     105     La. 

543,  30   So.    R.    175;     Bank    of 

Commerce  v.  Mayer,  42  La.  Ann. 

1031,  8  So.  R.  260;   McLaren  v. 

Kehler,  23   La.  Ann.   80,  8  Am. 

R.    592;    Tipton  v.   Mayfield,  10 

La.  189. 
Maryland.     Wernwag  v.  Pawling, 

4  Gill  &  J.  500,  25  Am.  Dec.  317. 
Nebraska.      Gaster    v.    Currie,    94 

N.  W.  R.  995. 
Pennsylvania.     Bowersox  v.   Gitt, 

12  Pa.  Co.  Ct.  81. 

Texas.  Babcock  v.  Marshall,  21 
Tex.  Civ.  App.  145,  50  S.  W. 
R.  728. 

Wisconsin.  Brown  v.  Parker,  28 
Wis.  21. 

United  States.    Danville  First  Na- 
tional Bank  v.  Cunningham,  48 
Fed.  R.  510. 
37.     Peet  v.  Hutchins,  112  Ala. 

514,  21  So.  R.  711,  57  Am.  St.  R. 

45;    Rae   v.    Hulbert,   17   111.   572; 

Hull   v.   Webb,   78   111.   App.    617; 

Butcher   v.    Bank,   2   Kan.    70,    83 

Am.    Dec.    446;     Ohio    v.     Hinch- 


man,  27  Pa.  St.  479;  Paine  v.  Ins. 
Co.  11  R.  I.  411;  Trowbridge  v. 
Spinning,  23  Wash.  48,  62  Pac.  R. 
125^  54  L.  R.  A.  204. 

38.     The   cases   arranged   as   to 
jurisdiction : 
United   States.    Hanley  v.  Donog- 

hue,    116    U.    S.    1,    6    Sup.    Ct. 

R.  242,   29  L.  Ed.  535;   Chicago 

&c.  R.  R.  Co.  v.  Wiggins  Ferry 

Co.,    119   U.    S.   615,   7    Sup.   Ct. 

R.  398,  30  L.  Ed.  519. 
Florida.     Lammis    v.    Wightman, 

31  Fla.  10,  12  So.  R.  526. 
Illinois.       Baltimore     &c.     R.     R. 

Co.   v.   McDonald,  112   111.  App. 

391. 
Louisiana.      Bank    of    Commerce 

v.  Mayer,   42.  La.  Ann.    1031,  8 

So.  R.  260. 

New   Jersey.     Thompson   v.   Wil- 
liamson, 58  Atl.   R.   602;    Davis 

v.  Headly,  22  N.  J.  Eq.  115. 
New  York.     People  v.   Dewey,  50 

N.  Y.  Sup.  1013. 
Ohio.     Pelton  v.  Platner,  13  Ohio 

209,  42  Am.  Dec.  197. 
South   Dakota.      Thomas    v.   Pen- 

dleton,  1  S.  D.  150,  46  N.  W.  R. 

180,  36  Am.  St.  R.  726. 
Wisconsin.      Rape    v.    Heaton,    9 

Wis.  328,  76  Am.  Dec.  269. 


26 


WUITTKN     LAWS    OF    FOKKKJN    COUNTRIES 


§26 


of  the  United  States  and  the  courts  of  last  resort  of  many  of 
the  states.89 


§26.    Written  Laws  of  Foreign  Countries. — How  Proven. 

When  the  validity  of  a  divorce  judgment  or  decree  granted 
in  ;i  foreign  country  comes  in  question  it  usually  becomes  nec- 
e>sai-y  ii.  ascertain  what  the  statute  law  of  that  country  is. 
ThN  can  he  done  only  by  proof  of  the  statute  law  of  such 
country  ;is  a  fact.  The  method  of  proving  such  fact  is  deter- 
mined by  the  course  pointed  out  by  the  laws  of  the  jurisdiction 
where  the  question  is  raised. 

In  the  State  of  Michigan,  printed- copies  of  the  statute  laws 
and  resolves  of  any  other  of  the  United  States,  or  of  any  terri- 
tory thereof,  or  of  any  foreign  state,  if  purporting  to  be  pub- 
lished under  the  authority  of  the  respective  governments,  or  if 
commonly  admitted  and  used  as  evidence  in  their  courts,  shall 
be  admitted  in  all  courts  and  in  all  proceedings  within  the 
state  as  prima  facie  evidence  of  such  laws  and  resolves.40  The 
courts  of  Michigan  do  not  take  judicial  notice  of  the  laws  of 
other  states  or  of  foreign  countries.41  Printed  copies  of  the 
laws  of  foreign  countries  are  prima  facie  evidence  only,  and 


39. 

United  States.  Hanley  v.  Donog- 
hue,  116  U.  S.  1,  6  Sup.  Ct.  R. 
242,  29  L.  Ed.  535. 

Florida.  Sammia  v.  Wightman, 
31  Fla.  10,  12  So.  R.  520. 

Iowa.  Taylor  v.  Runyan,  9  Iowa 
522. 

Massachusetts.  Knapp  v.  Abel, 
10  Allen  485;  Wright  v.  An- 
drews, 130  Mass.  149;  Mowry 
v.  Chase,  100  Mass.  79. 

Texas.1  Gill  v.  Everman,  94  Tex. 
209,  59  S.  W.  R.  531;  Porchler 
v.  Bronson,  50  Tex.  555. 

Wisconsin.  Osborn  v.  Black- 
burn, 78  Wis.  209,  47  N.  W.  R. 
175,  23  Am.  St.  R.  460,  10  L. 
R.  A.  367;  Rape  v.  Heaton,  9 
Wis.  328,  76  Am.  Dec.  269.  See 
also,  Walsh  v.  Dart,  12  Wis. 
635;  Hull  v.  Augustine,  23  Wis. 
383;  Pierce  v.  Chicago  &  N.  W. 
R.  R.  Co..  36  Wis.  283;  Horn 


v.  Chicago  &  N.  W.  R.  R.  Co., 
38  Wis.  463;  Keilam  v.  Toms, 
38  Wis.  592,  all  of  which  follow 
the  doctrine  laid  down  in  Rape 
v.  Heaton.  The  Supreme  Court 
of  the  United  States  recog- 
nizes the  same  rule  in  the  fol- 
lowing cases:  Lloyd  v.  Mat- 
thews, 155  U.  S.  222,  15  Sup. 
Ct.  R.  70,  39  L.  Ed.  128; 
Chicago  &c.  R.  R.  Co.,  v. 
Wiggins  Ferry  Co.,  119  U.  S. 
615,  7  Sup.  Ct.  R.  398,  30  L. 
Ed.  519. 

40.  C.  L.  '15,    (12513);    Howell 
(2nd.)   §12818. 

41.  Worthington  v.  Hanna,  23 
Mich.  534;  Great  Western  Ry.  Co., 
v.   Miller,  19  Mich.  305-314;    Peo- 
ple v.  Lambert,  5  Mich.  349;  Ker- 
mott    v.    Ayer,    11    Mich.    183-4; 
Ellis    v.    Maxon    19    Mich.    186; 
Jones  v.  Palmer,  1  Doug.  379. 


CONFLICT  OF  LAWS 


will  be  treated  as  :nil henl ic  until  tin1  contrary  is  shown.42 
Such  l:i\vs  may  bo  proven  by  exemplifications  under  the  jjrcat 
BOO]  <>f  the  si  ale  or  foreign  count  ry,4"  but  not  by  pnrol,  without 
showing;,  why  such  eviilence  is  necessary.44 

The  laws  of  another  stale  or  country,  jis  shown  by  its  stat- 
utes, are  presumed  to  continue,  unchanged  until  the  contrary 
is  shown.45  A  compilation  of  the  statutes  of  another  state 
commonly  admitted  in  the  courts  and  proceedings  in  that  state 
as  jn-ini(i  fnrir  evidence  of  its  laws,  may  be  used  to  prove  such 
laws,  though  it  is  an  unofficial  publication.40  It  appears  to  be 
a  well  settled  rule,  both  in  (his  country  and  in  Kngland,  that 
the  courts  will  not.  lake  judicial  cognizance  of  the  written  laws 
of  a  foreign  country.47 


42.  People  v.  Calder,  30  Mich 
88;  Wilt  v.  Cutler,  38  Mich.  189; 
Rice  v.   Rankans,  101  Mich.  378, 
f,!t  N.  W.  R.  660. 

43.  People  v.  Calder,  30  Mich. 
85. 

44.  People  v.  Lambert,  5  Mich. 
349. 

45.  People  v.  Calder,  30  Mich. 
88.  . 

46.  People  v.  McQuaid,  85  Mich. 
123,  48  N.  W.  R.  181. 

47.  The    following     cases     ar- 
ranged as  to  jurisdiction: 
Alabama.     Doe  v.  Eslava,  11  Ala. 

1028. 

Arkansas.  Cox  v.  Morrow,  14 
Ark.  603. 

California.  Wickersham  v.  John- 
ston, 104  Cal.  407,  38  Pac.  R. 
89,  43  Am.  St.  R.  118. 

Connecticut.  Brackett  v.  Nor- 
ton, 4  Conn.  517,  10  Am.  Dec. 
179. 

Delaware.  Thomas  v.  Grand 
Trunk  Ry.  Co.,  1  Pennew.  593, 
42  Atl.  R.  987. 

Illinois.  McCiirdy  v.  Alaska  &c. 
Commercial  Co.,  102  111.  App. 
120;  Dempster  v.  Stephen,  63 
111.  App.  126;  Rand  v.  Conti- 
nental Mut.  F.  Ins.  Co.,  58  111. 
App.  665. 

Indiana.  Coplinger  v.  The  David 
Gibson.  14  Ind.  480. 

Iowa.     Banco  de  Sonoro  v.  Bank- 


28 


ers  Mut.  Casualty  Co.,  95  N.  W. 
R.  232;  Bean  v.  Brlggs,  4  Iowa, 
464. 

Louisiana.  Kohn  v.  The  Renais- 
ance,  5  La.  Ann.  25,  52  Am. 
Dec.  527. 

Maryland.  Baptiste  v.  De  Wolun- 
brun,  5  Har.  &  J.  86. 

Massachusetts.  Aslanian  v.  Dos- 
tumian,  174  Mass.  328,  54  N.  E. 
R.  845,  75  Am.  St.  R.  348,  47 
L.  R.  A.  495;  Eastman  v.  Cros- 
by, 8  Allen  206 ;  Palfrey  v.  Port- 
land &c.  Ry.  Co.,  4  Allen  55. 

Michigan.  Chapman  v.  Colby,  47 
Mich.  46,  10  N.  W.  R.  74;  Ker- 
mott  v.  Ayer,  11  Mich.  181;  1 
Greenleaf  Evidence,  15th.  Ed. 
Sec.  486-8. 

Minnesota.  Brimhall  v.  Van 
Campen,  8  Minn.  13,  82  Am. 
Dec.  118. 

Mississippi.  Sessions  v.  Doe,  7 
Sm.  &  M.  130. 

Missouri.  Charlotte  v.  Chouteau, 
25  Mo.  465;  Chouteau  v. 
Pierre,  9  Mo.  3. 

Nebraska.  Moses  v.  Comstock,  4 
Neb.  516. 

New  Jersey.  Campion  v.  Kille, 
14  N.  J.  Eq.  229,  15  N.  J.  Eq. 
476. 

Now  York.  Monroe  v.  Douglass, 
5  N.  Y.  447;  Munroe  v.  Guil- 
leaume,  3  Abb.  Dec.  334;  Bates 
v.  Virolette,  33  N.  Y.  App.  Dlv. 


\\U1TI  i:\    LAWS   OP    loKKliiN    COIN  i 


436,   53    N.    V.    SUP    Bl 

Ins.  Oo    \     Pra&d      I  \V.-n«l.  64, 

I!'   Am    Dto,  M'.I;  Thompson  v. 

K.  tcham.    •»   .Johns,    286;     HOB- 

f«rd  v.  Nichols,  I  Paigo  220. 
Oregon.      si;it.     v.    Moy    Look,   7 

civ.  64. 
S.uitli   Carolina.      Mcl-Yo    V.   South 

Carolina     Ins.     Co..     2     McCord 

Mn.   Dec.  757. 
Trigg  v.  Moore.   10  Tex. 

197;    Hryant    v.  Kelton,   1  Tex. 

434;    Crosby  v.   Huston.    1    T,  \ 

203;     Burton    v.    Anderson,     1 

Vermont.  McLeod  v.  Connecti- 
cut &c.  58  Vt.  727,  6 
All.  R.  648;  Woodrow  v.  O'Con- 
nor. 28  Vt.  776;  Peck  v.  I  lib 
bard.  LY,  Vt.  698,  f,2  Am.  Dec. 
606. 

rnit.Mi  States.  Coghland  v.  S.  C. 
Ky.  Co.,  142  U.  S.  101,  12  Sup. 
Ct.  160,  36  L.  Ed.  951;  I 
pool  Ac.  Steam  Co.  v.  Phenix 
Co.,  129  U.  S.  397,  9  Sup. 
Ct.  R.  469,  32  L.  Ed.  788; 

l>ai \      llalc.    !U     I'.    S.    13, 

I  I'.tO;  Ennis  v.  Smith, 
14  How.  400,  14  L.  Ed.  472; 
SI  rot  In  T  v  Lucas,  6  Pet.  763, 
8  L.  Ed.  673;  Church  v.  Huh 


hart.    |    Cranch    IsT.     L'     I,      Kd. 

I       S.    v.    Mi-irnii.    4    Wash. 

WlI.nrKs      v        I'htllipS,      1 

Wai.   .Jr.    47;    I'i. -re-    r.    liulseth, 

106  U.  S.   546,  27   L.  Ed.  254. 

.ml.  ivMo.lcM  Case  8  Q.  B. 
208;  Nelso  v.  Hridport,  8  Beav. 
627,  10  Jur.  871;  Millar  v.  Hen- 
rick,  -I  Catnpli.  1 .....  Cilos  V. 
Hill.  1  Cainpli  171;  Fyson  v. 

Kemp,  r,  a  *:•   i1.  TI.  25  E.  C. 

L.    :::'i;:     La. -on     v      HiKgin 
Stark.    I  .  i    \     I',  r<  liar.l. 

i    i  Liny. i    v.   Ouihert, 

L    K.    1    I}.    It.    I  I...      Ill    Lloy.l    v 
(!ii!li«-rl.    Mr.    .ln-tic.-    Wil! 
delivering  jinlminyii   said:      "In 
order   to   preclude   all   inisap|>r. 
hension,    it    may   be   well   to  add, 

that  a  party  who  relies  upon  a 
right  or  an  exemption  hy  a 
t.-reiKii  law  is  bound  to  hrlng 
in -h  law  propc-rJy  beforo  the 
Court,  and  to  ,'slahlish  It  in 
proof.  Otherwise  the  court,  not 
heiiiK  entitled  to  notice  such 
law  without  judicial  proof,  must, 
proceed  according  to  the  law 
of  England." 

Canada.     Giles  v.  Qariepy,  29  L. 
C.  Jur.  207. 


M 


CHAPTER  III. 

VALIDITY    OF    FOREIGN    DIVORCE    AS    DEPENDENT 
UPON  JURISDICTION  OVER  DEFENDANT. 

§27.     Scope  of  Subject  Discussed. 

§28.     Domicile  of  Both  Parties  in  State  of  Forum. 

§29.     Domicile  of  Neither  Party  in  State  of  Forum. 

§30.     Domicile   of   One   Party   in   State   of  Forum. — Personal    Service 

on  Other  Party. 

§31.     Same. — Constructive  or  Substituted   Service  on  Other  Party. 
§32.     Effect  on  Property  Rights  when  Decree  Granted  on  Constructive 

Service. 

§33.     Right  to  Alimony. 

§34.     Custody  of  Minor  Children. — Remarriage  of  Defendant. 
§35.     Limited  "Recognition. — Interstate  Comity. 
§36.     Nonrecognition  where  no  Personal  Service  is  Had. 
§37.     Same. — Pennsylvania  Rule. 
§38.     Same. — South  Carolina  Rule. 
§39.     Rule  in  Federal  Courts. — Atherton  v.  Atherton  and  Haddock  v. 

Haddock. 

§27.    Scope  of  Subject  Discussed. 

Continuing  the  subject  of  the  conflict  of  laws  on  the  subject 
of  marriage  and  divorce,  the  purpose  of  this  chapter  is  to  dis- 
cuss the  question  of  the  validity  of  a  divorce  granted  by  a  for- 
eign court,  so  far  as  its  validity  depends  upon  the  jurisdiction 
which  the  court  granting  the  decree  acquired  over  the  defend- 
ant, when  such  jurisdiction  was  exercised  in  the  manner  pro- 
vided by  the  law  of  the  state  in  which  the  decree  was  granted. 
In  other  words,  the  important  question  in  this  connection  is 
whether  a  court  of  competent  jurisdiction,  in  which  an  action 
for  divorce  is  instituted,  having  acquired  jurisdiction  over  the 
defendant  in  the  manner  prescribed  by  the  local  law,  has  ac- 
quired such  jurisdiction  as  entitles  its  decree  of  divorce  to  ex- 
tra-territorial recognition,  assuming  that  the  court  has  juris- 
diction of  the  subject-matter  of  the  divorce,  that  it  has  juris- 
diction to  grant  a  divorce  at  the  suit  of  the  plaintiff,  that  the 
divorce  is  granted  for  reasons  entitling  it  to  recognition  extra- 
*  territorially,  and  that  the  proceedings  are  regular. 

No  difficulty  or  serious  difference  of  opinion  can  arise  as  to 

30 


DOMICILE    OF    nOTLI    PARTIES    IN    STATK 

some  phases  of  this  question.  Thus,  it  is  nowhere  questioned 
that  a  foreign  divorce  is  valid  ;md  entitled  to  extra-territorial 
recognition  if  botli  of  the  parties^were  domiciled  within  the 
territorial  jurisdiction  of  the  court  granting  the  decree, 
whether  the  service  on  the  defendant  was  actual  or  construc- 
livr.  Nor  has  it  ever  been  questioned  that  a  foreign  divorce  is 
valid  if  granted  against  a  non-resident  defendant  who  was  per- 
sonally served  with  process  within  the  territorial  jurisdiction 
of  the  court,  or  who  entered  an  appearance  in  the  action  either 
in  person  or  by  attorney.  It  is  eqally  well  settled  that  a  for- 
eign divorce,  based  upon  a  constructive  service,  is  invalid  it 
neither  of  the  parties  were  domiciled  within  the  territorial 
jurisdiction  of  the  court  which  granted  the  decree. 

The  difficulty  arises  in  those  cases  where  the  divorce  is 
granted  in  favor  of  a  plaintiff  domiciled  within  the  territorial 
jurisdiction  of  the  court,  and  against  a  defendant  domiciled 
in  another  jurisdiction.  This  latter  question  has  given  rise  to 
such  a  decided  difference  of  opinion  that  the  authorities  seem 
to  be  in  hopeless  and  unreconcilable  conflict. 

§28.     Domicile  of  Both  Parties  in  State  of  Forum. 

Where  both  parties  have  their  domicile  in  the  same  state  a 
decree  of  divorce  granted  by  a  court  of  competent  jurisdiction 
in  that  state,  founded  upon  personal  service,  is  valid  and  en- 
titled to  recognition  in  every  other  state.1 

In  the  state  of  New  York  it  is  held  that  a  decree  of  divorce 
granted  by  the  courts  of  another  state  in  favor  of  a  citizen 
there  domiciled,  and  against  a  domiciled  citizen  of  the  same 
state,  founded  upon  substituted  service  of  process  made  in 
the  manner  authorized  by  the  law  of  that  state  in  the  case  of 
absent  defendants,  is  valid  in  pcrsonam  so  as  to  effect  a  disso- 
lution of  the  marriage  contract,  and  is  conclusive  upon  the  de- 
fendant in  the  courts  of  another  state,  though,  during  the  pro- 
ceedings, he  was  not  in  the  territorial  jurisdiction  of  the  court 
which  granted  the  decree,  and  did  not  enter  an  appearance  in 
the  case.2  This  is  upon  the  principle  that  the  court  which 
granted  the  decree  had  jurisdiction  of  both  the  subject  matter 

1.  Barber    v.    Root,     10    Mass.  Lacey    v.   Lacey,   77   N.   Y.   Supp. 
260.  235;    Campbelle  v.   Campbelle,  90 

2.  Hunt    v.    Hunt,     72     N.     Y.  Hun    (N.  Y.)    233,  35  N.  Y.  Supp. 
217;    Matter  of  Dennick,   92  Hun  ^80;   Matter  of  Morricon,  52  Hun 
(N.  Y.)    161,  36  N.  Y.  Supp.  518;  (N.  Y.)    102,  5  N.  Y.  Supp.  90. 

31 


§29  VALIDITY    OF    FOREIGN    DIVORCE 

*  _ 

and  the  parties  to  the  suit,  and  the  decree  therefore  is  a  judg- 
ment entitled  under  the  Federal  constitution  to  full  faith  and 
credit  in  every  other  state.3  Such  divorce  is  not  only  a  bar  to 
an  action  subsequently  brought  by  the  defendant  in  another 
state,  but  a  subsequent  marriage  by  the  plaintiff'is  valid,  not 
only  in  the  state  where  the  divorce  was  granted,  but  in  every 
other  state.4  In  Atherton  v.  Atherton,  155  N.  Y.  129,  49  N.  E. 
K.  933,  where  a  divorce  was  granted  in  Kentucky  to  a  husband 
whose  wife  had  abandoned  him  and  removed  to  the  state  of 
New  York,  the  court  refused  to  recognize  its  validity  for  the 
reason  that  only  constructive  service  had  been  made  upon  the 
wife,  and  a  divorce  was  granted  to  her  upon  her  petition,  but 
on  appeal  to  the  Supreme  Court  of  the  United  States,  the  de- 
cree was  reversed,  that  court  holding  that  the  decree  of  the 
Kentucky  court  was  entitled  to  full  faith  and  credit  in  the 
state  of  New  York.5 

§29.    Domicile  of  Neither  Party  in  State  of  Forum. 

A  decree  of  divorce  upon  constructive  service  alone,  granted 
by  the  court  of  a  state  in  which  neither  party  is  domiciled  and 
where  there  is  no  appearance  of  the  defendant,  either  in  per- 
son or  by  attorney,  will  not  be  recognized  in  other  states.6 
This  is  also  true  of  a  divorce  granted  in  a  foreign  country,7 
and  such-  a  divorce  cannot  be  set  up  as  a  bar  to  an  action  for 
divorce  brought  by  the  original  defendant  in  the  state  where 
the  parties  are  domiciled.8  Nor  does  the  decree  bar  an  action 
for  divorce  brought  by  the  original  defendant  and  based  upon 
the  ground  that  the  original  plaintiff  committed  adultery  by 

3.  Hunt  v.  Hunt,  72  N.  Y.  217.  75   Minn.   433,  78    N.  W.   R.   108; 

4.  Matter  of  Dennick,  92  Hun  Magowan   v.   Magowan,   57   N.   J. 
(N.  Y.)    161,  36  N.  Y.  Supp.  518.  Eq.    322,    42   Atl.    330;    Streitwolf 

5.  Atherton    v.    Atherton,    181  v.    Streitwolf,   181   lT.    S.    179,   45 
U.  S.  155,  45  L.  Ed.  794,  21  Sup.  L.  Ed.  807,  21  Sup.  Ct.  553;   Bell 
Ct.  544.  v.  Bell,  181   U.  S.   175,  45  L.  Ed. 

6.  Leith   v.    Leith,    39    N.    H.  804,  21   Sup.   Ct.   R.   551;   Wright 
20;    People  v.   Dawell,    25    Mich.  v.   Wright,   24   Mich.   180;    Smith 
247;    Sewall  v.  Sewall,  122  Mass.  v.   Smith,   19  Neb.  706,   28  N.  W. 
150,  23  Am.  R.  299;  Litowitch  v.  R.    296;    Prosser    v.    Warnes,    47 
Litowitch,    19    Kan.    451,    27    Am.  Vt.   667. 

R.   145;   Van  Fossen  v.   State,   37  7.     De  Meli  v.  De  Meli,  120  N.  Y. 

Ohio    St.    317,    41    Am.     R.     507;  485,   24   N.   E.    946;    St.     Sure    v. 

Gregory  v.   Gregory,   78   Me.   187,  Lindsfelt,  82  Wis.   346,  52  N.  W. 

57  Am.  R.  792;   Dunham  v.  Dun-  308. 

ham,  162  111.  589,  35  L.  R.  A.  70,  8.     Bell  v.  Bell,   181  U.   S.  175, 

44  N.  E.   841;    Thelen  v.   Thelen,  45  L.  Ed.  804,  21  Sup.  Ct.  R.  551; 

32 


DOMICILE   OF   (>\i:    I'AKTV    IN   STATE  §30     ' 

remarrying,  and  if  after  such  a  divorce  the  original  defendant 
should  remarry,  the  decree  would  be  no  defense  to  a  prosecu- 
tion for  open  and  notorious  fornication,  or  lewd  and  lascivious 
cohabitation.8  A  decree  of  divorce  rendered  under  such  cir- 
cumstances is  not  entitled  to  recognition  in  other  states  under 
the  Federal  constitution.10 

§30.    Domicile    of   One   Party   in   State   of   Forum — Personal 
Service  on  Other  Party. 

Where  an  action  for  divorce  against  a  non-resident  is  insti- 
tuted in  a  state  court  of  competent  jurisdiction,  personal  ser- 
vice on  the  defendant  gives  the  court  jurisdiction  over  his  per- 
son, empowering  it  to  grant  a  divorce  which  will  be  valid,  not 
only  in  that  state,  but  in  every  other  state  of  the  Union,11  and 
in  such  case  the  decree  will  be  valid,  though  there  may  have 
been  no  personal  service  of  process,  if  the  defendant  enters  an 
appearance  in  the  case,  either  in  person  or  by  attorney.12 

Although  a  divorce,  by  reason  of  service  by  publication  only, 
may  be  ineffectual  as  to  a  non-resident  defendant,  he  will  be 
bound  by  a  supplementary  decree  on  motion  of  the  plaintiff, 
rendered  against  him  for  alimony  already  accrued  under  the 
original  decree  if  he  has  appeared  and  contested  the  motion.18 

A  decree  of  divorce,  rendered  by  a  state  court  of  competent 
jurisdiction  against  a  non-resident  defendant  upon  whom  no 
service  has  been  had  but  who  has  appeared  in  the  case,  will  be 
entitled  to  protection  and  must  receive  recognition  in  every 
other  state  under  the  full  faitli  and  credit  clause  of  the  Fed- 
eral constitution.  But  where  there  is  a  statute  in  the  state  of 
the  hubsand's  domicile  providing  that  where  a  decree  of  di- 
vorce is  granted  a  wife  for  the  wrong  of  the  husband  she  shall 

Strait  v.  Strait,  3  McArthur,   (D.  Ohio  St.  646,  11  N.  E.  R.  118. 
C.)  415;  Hoffman  v.  Hoffman,  46         12.    Cheever  v.  Wilson,  9  Wall. 

N.  Y.  30;  Smith  v.  Smith,  19  Neb.  (U.  S.)  108,  19  L.  Ed.  604;  Jones 

706,  28  N.  W.  R.  296.  v.  Jones,  108  N.  Y.  415,  15  N.  E. 

9.  Hood  Y.  State,  56  Ind.  263.  U.    707;    Rigney    v.    Rigney,    127 

10.  Hood  v.  State,  56  Ind.  263;  N.  Y.  408,  24  N.  E.  R.  405;  Rich 
Wright  v.  Wright,  24  Mich.  180;  v.  Rich,  88  Hun    (N.  Y.)    566,  34 
Van   Inwagen   v.    Van     Inwagen.  N.    Y.    Supp.    845;    Arrington     v. 
86  Mich.  339,  49  N.    W.    R.    50;  Arrington,  102  N.  C.  491,  9  S.  E. 
Bear    v.    Heasley,    98    Mich.    315;  R.  200;  Bidwell  v.  Bidwell,  139  N. 
57  N.  W.  R.  270;  People  v.  Dawell,  C.  402,  52  S.  E.  R.  55. 

25  Mich.  247;  McEwan  v.  Zim-  13.  Lynde  v.  Lynde,  162  N.  Y. 
mer,  38  Mich.  765.  405,  56  N.  E.  R.  979. 

11.  McGill      v.      Deeming,     44 

33    ' 


§31  VALIDITY    OF    FOREIGN    DIVORCE 

be  entitled  to  dower,  an  absolute  divorce  granted  the  wife  on 
that  ground  in  another  state,  founded  upon  personal  service 
upon  the  husband,  entitles  her  to  dower  in  his  real  property 
located  in  the  state  of  his  domicile,  and  this  though  she  mar- 
ries another  man  after  the  divorce  and  before  her  first  hus- 
band's death.14 

§31.     Same. — Constructive    or    Substituted    Service    on    Other 
Party. 

There  seems  to  be\a  hopeless  and  irreconcilable  conflict  of 
authority  in  this  country  on  the  subject  of  the  validity  of  a 
divorce  granted  a  resident  against  a  non-resident,  where  only 
constructive  or  substituted  service  lias  been  made.14a  In  a 
number  of  states  the  rule  seems  to  be  that  where  the  statutes 
of  a  state  provide  that  a  divorce  may  be  granted  in  that  state 
in  proceedings  instituted  by  constructive  service,  a  divorce  so 
granted  to  a  plaintiff  who  has  a  bona,  fide  domicile  therein, 
against  a  non-resident  defendant,  if  valid  there  is  equally  valid 
in  every  other  state,  so  far  as  the  dissolution  of  the  marriage 
relation  is  concerned,  notwithstanding  the  fact  that  the  de- 
fendant was  not  served  with  process  personally  and  had  no 
knowledge  of  the  proceedings.15  And  this  appears  to  be  the 

14.  McGill  v.  Deming,  44  Ohio        '  589,  44  N.  E.  R.  841. 

St.  645,  11  N.  E.  R.  118.  v  Indiana.      Hilbish    v.    Hattle,    145 

14a.      The    cases   on   both   sides  Ind.  59,  44  N.  E.  R.  20. 

of  this  question  are  very  numer-  Iowa.    Wakefield^  v.  Ives,  35  Iowa 

ous.     The  question  is  exhaustive-  238 ;  Van  Orsdall  v.  Van  Orsdall, 

ly  discussed  in  the  cases  of  Ather-  67  Iowa  35,  24  N.  E.  R.  579. 

ton   v.    Atherton,    181   U.    S.    155,  Kansas.      Chapman    v.    Chapman, 

45  L.  Ed.  794,-  21  Sup.  Ct.  R.  544,  48    Kan.    636,    29  Pac.   R.   1071; 

and   in  Haddock  v.  Haddock,  201  Rodgers    v.    Rodgers,     56     Kan. 

U.  S.  561,  50  L.  Ed.  867,  and  many  483,  43  Pac.  R.  779;  Roe  v.  Roe, 

of  the  leading  authorities  on  both  52   Kan.   724,  35  Pac.  R.  808. 

sides  of  the  question  are  cited.  Kentucky.     Hawkins  v.  Ragsdale, 

15.  The     following     cases    ar-  80   Ky.   353. 

ranged  as  to  jurisdiction:               ,  Louisiana.     Benton's     Succession, 

Alabama.       Thompson     v.     State,  106   La.   494,    31    So.    R.    123; 

Ala.    12;    Thompson  v.   Thomp-  Smith  v.   Smith,    43    La.    Ann. 

son,  91  Ala.  591,  8  So.  R.  419.  1140,  10  So.  R.  248. 

California.     Matter    of    Newman,  Maine.     Handing  v.  Alden,  9  Me. 

75  Cal.  213,  16  Pac.  R.  887;  Mat-  140. 

ter   of   James,    99   Cal.    374,   33  Maryland.     Garner  y.  Garner,  56 

Pac.  R.  1122.  Md.  127. 

Illinois.     Knowlton   v.  Knowlton,  Minnesota.     Thurston    v.    Thurs- 

155   111.   158,   39   N.   E.   R.    595;  ton,  58  Minn.  279,  59  N.  W.  R. 

Dunham    v.    Dunham,     162    111.  1017. 

34' 


EFFECT  OF  PROPERTY  RIGHTS  §32 

rule  though  the  state  in  which  the  divorce  is  granted  is  not 
i lie  state  in  which  the-  marriage  was  .celebrated.10  This  rule 
has  been  applied  to  a  husband  who  removed  in  good  faith  from 
the  slate  \vhere  the  marriage  was  celebrated  to  the  state  where 
the  decree  was  granted,  for  the  bona  fide  purpose  of  residing 
there,17  and  to  a  divorce  obtained  by  a  wife  who  separated 
from  her  husband  for  adequate  cause,  and  removed  in  good 
fa  i  tli  from  the  state  where  her  husband  resided  to  the  state 
where  the  divorce  was  granted,  with  the  intention  of  making 
that  state  her  permanent  residence.18 

The  true  principle  upon  which  divorces  are  sustained,  which 
are  granted  in  other  jurisdictions  against  non-resident  defend- 
ants constructively  served,  appears  to  be  that  a  proceeding  to 
dissolve  the  marriage  relation  is  a  proceeding  in  rem,  the  mar- 
riage status  being  the  re*.10 

§32.     Effect  on  Property  Rights  when  Decree  Granted  on  Con- 
structive Service. 

Those  cases  which  sustain  divorces  granted  against  non-resi- 
dent defendants  constructively  served,  and  holding  that  such 
divorces  operate  to  dissolve  the  marriage  relation,  not  only  in 
the  state  where  granted  but  in  every  other  state,  are  not  en- 
tirely harmonious  as  to  the  extra-territorial  effect  of  the  de- 
cree upon  the  property  rights  of  the  parties.  Some  of  the 
cases  hold  that  while  a  decree  of  divorce  rendered  against  a 

Missouri.     Gould  v.  Crow,  57  Mo.  Crow,     57     Mo.     200;     Doerr     v. 

200;   Anthony   v.  Rice,   110  Mo.  Forsythe,  50  Ohio  St.   726,  35  N. 

223,  19  S.  W.  R.  423.  E.    R.    1055;    Ditson    v.    Ditson,    4 

Ohio.     Doerr  v.  Forsythe,  50  Ohio  58  Minn.  279,  59  N.  W.  R.  1017. 

St.  726,  35  N.  E.  R.  1055.  R.    I.    87;    Thomas     v.    King,    95 

Rhode   Island.     Ditson  v.   Ditson,  Tenn.  60,  31  S.  W.  R.  983. 

4  R.  I.  87.  17.     Thompson  v.  Thompson,  91 

Tennessee.      Thorns    v.    King,    95  Ala.  591,  8  So.  R.  419;   Van  Ors- 

Tenn.  60,  31  S.  W.  R.  983.  dall    v.     Van    Orsdall,     67     Iowa 

Wisconsin.     Shafer    v.    Byshnell,  35,  24  N.  W.  R.  579;  Roe  v.  Roe,52 

24  Wis.  372;   Cook  v.  Cook,  56  Kan.  724,   35  Pac.  R.  808;   Gould 

Wis.   195,   14  N.  W.  R.  33,  443,  v    Crow,    57   Mo.    200;     Doerr    v. 

16.     Thompson  v.  Thompson,  91  Forsythe,  50  Ohio  St.   726,  35  N. 

Ala.  591,  8  So.  R.  419;   Matter  of  E.  R.  1055. 

James,  99  Cal.  374,  33  Pac.  R.  18.  Dunham  v.  Dunham,  162 
1122;  Knowlton  v.  Knowlton,  155  111.  589,  44  N.  E.  R.  841;  Chap- 
Ill.  158,  39  N.  E.  R.  595;  Van  man  v.  Chapman,  48  Kan.  636, 
Orsdall  v.  Van  Orsdall,  67  Iowa  29  Pac.  R.  1071. 
35,  24  N.  W.  R.  579;  Roe  v.  Roe,  19.  Matter  of  Newman,  75  Cal. 
52  Kan.  724.  35  Pac.  R.  808;  Hard-  213,  16  Pac.  R.  887;  Dunham  v. 
ing  v.  Alden,  9  Me.  140;  Gould  v.  Dunham,  162  111.  589,  44  N.  E.  R. 

35 


§33  VALIDITY   OF   FOREIGN  DIVORCE 

« 

non-resident  defendant,  founded  upon  service  by  publication 
only,  determines  the  status  of  the  parties,  it  does  not  by  its 
own  force  affect  the  right  to  property  in  other  states.20  Thus 
a  divorce  based  upon  constructive  service  procured  by  a  hus- 
band in  one  state  does  not  cut  off  his  wife's  dower  right  in 
property  located  in  another  state  which  is  the  state  of  her  res- 
idence.21 

On  the  other  hand  it  has  been  held  that  such  a  decree  of 
divorce  not  only  dissolves  the  marriage,  but  cuts  off  the  wife's 
dower  right  or  the  husband's  curtesy,  as  the  case  may  be,  even 
as  to  land  located  in  other  states.22 

§33.    Right  to  Alimony. 

As  to  the  extra-territorial  effect  upon  the  right  to  alimony 
of  a  divorce  granted  upon  constructive  service,  the  decided 
cases  are  more  harmonious.  The  proceeding  not  being  in  per- 
sonam,  such  a  divorce  wheri  rendered  against  the  wife  does  not 
preclude  her  from  recovering  alimony  in  an  appropriate  pro- 
ceeding instituted  by  her  in  the  state  of  her  residence.23  And 
on  the  same  principle  a  decree  of  divorce  based  upon  construc- 
tive service,  which  undertakes  to  award  alimony,  has  no  extra- 
territorial effect  as  to  alimony,24  and  a  wife  who  has  obtained 
a  decree  of  divorce  and  alimony  in  a  proceeding  in  a  state 
other  than  that  of  her  husband's  domicile,  in  which  only  con- 
structive service  was  had,  may  maintain  an  independent  ac- 
tion against  her  husband  for  alimony  in  the  state  of  his  resi- 
dence.25 

§34.     Custody  of  Minor  Children — Remarriage  of  Defendant. 

A  decree  of  divorce  based  only  upon  constructive  service 
has  no  extra-territorial  effect  so  far  as  it  attempts  to  fix  and 
determine  the  custody  and  control  of  the  minor  children  of 

841;   Gould  v.  Crow,  57  Mo.  200;  Tenn.  60,  31  S.  W.  R.  983. 

Thomas  v.  King,  95  Tenn.  60,  31  .    23.     Rogers  v.  Rogers,  56  Kan. 

S.  W.  R.  983;   Ellison  v.  Martin,  483,  43  Pac.  R.  779;   Thurston  v. 

53  Mo.  575.  Thurston,    58    Minn.    270,    59    N. 

20.  Hawkins    v.    Ragsdale,    80  W.  R.  1017. 

Ky.    353;    Thurston   v.    Thurston,  24.     Gould  v.  Crow,  57  Mo.  200; 

21.  Doerr  v.  Forsythe,  50  Ohio  Eldred   v.   Eldred,    62    Neb.     613, 
St.  726,  35  N.  E.  R.  1055.  87  N.  W.  R.  340. 

22.  Hiblish  v.  Hattle,  145  Ind.  25.     Eldred   v.  Eldred,  62  Neb. 
59,  44  N.  E.  R.  20;  Gould  v.  Crow,  613,  87  N.  W.  R.  340;  Cox  v.  Cox, 
57  Mo.   200;   Thomas  v.  King,  95  19  Ohio  St.  502. 

36 


LIMITED    RECOGNITION  i'.'~> 

tin-  parties,-"  ;m<l  it  has  been  held  that  such  a  decree  has  no 
extra-territorial  effect  so  far  as  it  prohibits  the  defendant  from 

marrying  again.-7  * 

§35.    Limited  Recognition — Interstate  Comity. 

In  the  state  of  New  Jersey  it  has  been  held  that  interstate 
enmity  requires  the  courts  of  that  state  to  recognize  a  decree 
of  divorce  pronounced  by  a  court  of  the  state  in  which  the 
plaintiff  is  domiciled  and  which  has  jurisdiction  of  the  sub- 
ject-matter of  the  suit,  in  the  absence  of  fraud,  notwithstand- 
ing the  fact  that  the  defendant  does  not  reside  within  the 
jurisdiction  of  the  court  which  granted  the  decree  and  has  not 
been  served  with  process  therein,  provided  t^at  a  substituted 
service  was  made  in  accordance  with  the  provisions  of  the 
statutes  of  that  state,  and  that  actual  notice  of  the  pendency 
of  the  suit  has  been  given  to  the  defendant,  together  with  a 
reasonable  opportunity  to  put  in  a  defense  thereto,  and  pro- 
vided further,  that  the  ground  on  which  the  decree  rests  is  one 
which  the  public  policy  of  the  state  in  which  it  is  sought  to  be 
enforced  recognizes  as  a  sufficient  ground  for  divorce.28 

But  a  foreign  decree  of  divorce  will  not  be  recognized  in 
New  Jersey  if  the  defendant  was  pot  served  with  process  or 
notice,  and  had  no  knowledge  of  the  proceedings  until  after 
their  termination,  whatever  its  effect  may  be  in  the  foreign 
state,  and  such  a  divorce  will  be  no  bar  to  a  suit  for  divorce, 
subsequently  brought  by  the  defendant  in  New  Jersey.29  This 
appears  to  be  upon  the  theory  that  an  appeal  to  interstate 
comity  to  recognize  a  foreign  decree  ought  not  to  prevail  when 
the  judgment  has  been  rendered  in  violation  of  the  funda- 
mental maxim  of  justice  that  every  person  shall  have  an  op- 
portunity to  be  heard  before  his  rights  are  passed  upon  by  a 
judicial  tribunal.80. 

In  Louisiana  it  has  been  held  that  the  courts  of  that  state 
will,  by  comity,  hold  valid  a  divorce  granted  upon  constructive 
service  of  process,  against  a  resident  of  that  state  by  the 

26.  Kline    v.    Kline,    57    Iowa      1017. 

386,  10  N.  W.  R.  825;  Rodgers  v.          29.     Flower  v.  Flower.  42  N.  J. 

Rodgers,  56  Kan.  483,  43  Pac.  R.  Eq.  162,  7  All.  R.  669;   Fairchild 

779.  v.    Fairchild,    53    N.    J.    Eq.    678, 

27.  Garner   v.   Garner,  56  Md.  34  All.  R.  10. 

127.  30.     Doughty  v.  Doughty,  28  N. 

28.  Felt  v.   Felt,   59  N.   J.  Eq.      J.  Eq.   581. 
606,    45    Atl.    R.    105,    49    Atl.    R. 

3T 


§36  VALIDITY  OF   FOREIGN   DIVORCE 

courts  of  a  foreign  state,  provided  the  policy  of  the  divorce 
legislation  of  the  two  states  is  similar  and  the  notice  given  in 
the  foreign  state  is  in  substantial  accord  with  the  Louisiana 
statute.31 

§36.    Nonrecognition  where  no  Personal  Service  is  Had. 

In  a  number  of  cases  the  Federal  courts,  and  some  of  the 
state  courts,  have  taken  the  position  that  a  divorce  founded 
upon  constructive  service,  rendered  in  one  state  against  a  non- 
resident defendant  without  personal  service  in  that  state  or 
an  appearance  either  in  person  or  by  attorney,  has  no  extra- 
territorial force.  The  courts  so  holding  seem  to  concede  that 
a  state  may  adjudge  the  status  of  its  citizens  toward  a  non- 
resident, but  hold  that  it  cannot  fix  the  status  upon  such  non- 
resident against  his  will  and  without  his  consent.  They  hold, 
therefore,  that  a  state  has  no  power  to  dissolve  the  matrimo- 
nial relations  of  a  person  actually  domiciled  and  residing  in 
another  state,  who  has  not  been  personally  served  with  pro- 
cess and  who  has  not  entered  an  appearance  either  in  person 
or  by  attorney.  Such  a  divorce,  if  granted,  will  not  be  recog- 
nized in  the  state  of  the  defendant's  domicile.32  And  this  is 
true  though  the  defendant,  a  non-resident,  had  actual  notice 
by  substituted  service  of  the  bringing  of  the  action.33 

Even  if  the  non-resident  defendant  was  served  with  a  sum- 
mons in  the  state  of  his  residence,  the  decree  of  divorce  will 
.not  be  recognized  in  the  courts  of  that  state.34  The  fact  that 

31.  Smith   v.     Smith,    43    La.  R.   333;    Williams   v.  Williams, 
Ann.   1140,   10    So.   R.    248;     Ben-  130  N.  Y.  193,  29  N.  E.  R.  98; 
nington's     Succession,     106      La.  Winston  v.  Winston,  165  N.  Y. 
An.  494,  31  So.  R.  123.  553,  59  N.  E.  R.  273. 

North   Carolina.     Irby  v.  Wilson, 

32.  These  cases  arranged  as  to          1  Dev.  &  B.  Eq.    (21   N.  C.)    568; 
jurisdiction:  Harris  v.  Harris,  115  N.  C.  587, 
United  States.     Hekking  v.  Pfaff,          20     S.     E.     R.     187;     State      v. 

82  Fed.  R.  403.  Schlachter,    61   N.    C.   520. 

District  of  Columbia.     Barney  v.  Wisconsin.       Cook     v.     Cook,     56 

De  Kraft,  6  D.  C.  361.  Wis.  195,  14  N.  W.  R.  33,  443; 

Michigan.    Reed  v.  Reed,  52  Mich.  Schafer    v.    Bushnell,     24    Wis. 

117,  17  N.  W.  R.   720;   Van  In-  372. 

wagen     v.     Van     Inwagen,     86  33.     Williams   v.   Williams,    130 

Mich.  333,  49  N.  W.  R.  154.  N.  Y.  193,  29  N.  E.  R.  98;  Harris 

New  York.     Bradshaw   v.   Heath,  v.    Harris,    115   N.    C.    587,    20   E. 

13   Wend.    (N.  Y.)    407;    People  R.   187. 

v.  Baker,  76  N.  Y.  78;   Cross  v.  34.     Williams   v.   Williams,   130 

Cross,   108  N.  Y.  628,   15   N.  E.  N.  Y,  193,  29  N.  E.  R.  98;   Matter 

38 


PENNSYLVANIA   RULE  §37 

the  marriage  \v;is  celebrated  in  the  state  where  the  divorce 
was  granted  does  not  change  the  rule.33  A  divorce  granted 
against  a  nun  resident  defendant  upon  constructive  service 
only  is  not  a  bar  to  a  subsequent  suit  for  divorce  or  separa- 
tion, brought  by  the  defendant  in  the  state  in  which  he  was 
domiciled  at  the  time  the  foreign  divorce  was  granted  against 
him.30 

The  spouse  procuring  a  decree  of  divorce  in  one  state,  upon 
constructive  service  only,  cannot  impeach  its  validity  in  an- 
other state.  Thus,  where  a  wife  procured  a  divorce  in  Massa- 
chusetts and  her  husband  was  served  '  with  process  in  New 
York,  but  did  not  appear  nor  submit  to  the  jurisdiction  of  the 
Massachusetts  court,  it  was  held  that  in  a  subsequent  pro- 
ceeding for  divorce  she  could  not  be  heard  to  impeach  the  va- 
lidity of  the  decree  which  she  had  procured.87 

§37.     Same. — Pennsylvania  Rule. 

In  Pennsylvania  it  is  held  that,  except  where  the  defendant 
has  removed  from  what  was  the  common  domicile,  the  spouse 
seeking  a  divorce  must  sue  in  the  forum  of  the  defendant's 
residence,  so  that  where  a  divorce  is  granted  against  a  non- 
resident defendant  upon  constructive  service  only,  it  is  void, 
at  least  extra-territorially,  the  court  having  no  jurisdiction.*8 
This  rule  has  been  applied  in  the  Pennsylvania  courts  in  cases 
where  a  husband  had  left  his  wife  in  Pennsylvania  and  gone 
to  another- state  and  procured  a  decree  of  divorce  upon  con- 
structive service.39  In  such  cases  the  husband's  foreign  di- 
vorce does  not  destroy  the  wife's  interest  in  his  property,  and 
the  wife,  notwithstanding  the  divorce,  may  take  out  letters  of 
administration  upon  his  estate  after  his  death.40  Tt  is  also 

of  Kimball,   155  N.  Y.   62,   49   N.  of  Swales,  60  App.  Div.  599,  70  N. 

E.    R.    331;    Matter   of  House,   20  Y.  Supp.  220. 

Civ.  Proc.  R.  130,  14  N.  Y.  Supp.  38.     Colvin  v.  Reed,  55  Pa.  St. 

275;     Gebhard     v.     Gebhard,     25  375;    Reed    v.    Elder,    62    Pa.    St. 

Misc.  Ref.  1,  54  N.  Y.  Supp.  406.  308;    Plait's   Appeal,   80     Pa.     St. 

35.  People  v.   Baker,  76  N.  Y.  501;    Fyock's  Estate,  135  Pa.   St. 
78.  522,  19  Atl.  R.  1055. 

36.  Van    Inwagen    v.    Van    In-  39.    Colvin  v.  Reed,  55  Pa.  St. 
w.agen,  86  Mich.  333,  49  N.  W.  R.  375;    Reed   v.   Elder,   62    Pa.     St.  x 
154;  Cross    v.    Cross,    108    N.    Y.  308;    Hein's   Estate,   22  Pa.   Sup. 
628,  15  N.  E.  R.  333;  Hamilton  v.  Ct.  31. 

Hamilton,    26   Misc.   Ref.   336,   56          40.     Fyock's  Estate,  135  Pa.  St. 

N.  Y.  Supp.  122.  522,   19  Atl.  R.   1056;    Hein's  Es- 

37.  Starbuck   v.   Starbuck,  173  tate,  22  Pa.  Sup.  Ct.  R.  31. 
N.  Y.  503,  66  N.  E.  R.  193;  Matter 

39 


§38  VALIDITY  OP   FOREIGN  DIVORCE 

held  in  Pennsylvania  that  a  decree  of  divorce  procured  upon 
constructive  service  in  another  state  against  a  defendant  dom- 
iciled in  Pennsylvania,  forbidding  remarriage  of  the  defend- 
ant during  the  life  of  the  plaintiff,  has  no  extra-territorial 
effect.41 

§38.     Same.— South  Carolina  Rule. 

In  the  state  of  South  Carolina  there  are  no  divorce  laws, 
and  the  constitution  of  the  state  prohibits  the  passing  of  such 
laws  by  the  legislature.  The  courts  of  that  state  hold  that  a 
divorce  granted  to  a  wife  in  a  foreign  state,  on  publication  of 
process  or  constructive  service,  against  her  husband  domiciled 
in  South  Carolina,  will  not  be  recognized,  and  that  the  full 
faith  and  credit  clause  of  the  Federal  constitution  does  not 
require  such  recognition,  the  court  of  the  foreign  state  having 
acquired  no  jurisdiction  over  the  defendant.  It  is  also  held 
that  the  foreign  divorce  does  not  bar  the  wife's  right  of 
dower.42 

There  appear  to  be  no  decisions  in  South  Carolina  as  to 
whether  the  courts  of  that  state  will  recognize  a  foreign  di- 
vorce based  upon  personal  service.  It  would  seem  'that  if  the 
foreign  court  had  jurisdiction  of  jthe  subject  matter,  and 
granted  a  decree  after  personal  service  on  the  defendant, 
within  the  territorial  jurisdiction  of  the  court,  the  courts  of 
South  Carolina,  under  the  full  faith  and  credit  rule,  would  be 
bound  to  recognize  such  decree  as  valid. 

§39.    Rule  in  Federal  Courts. — Atherton  v.  Atherton  and  Haddock 
v.  Haddock. 

In  the  case  of  Atherton  v.  Atherton,  referred  to  in  §28,  the 
Supreme  Court  of  the  United  States  held  that  where  the  dom- 
icile of  the  husband  is  in  a  particular  state,  and  that  state  is 
the  only  matrimonial  domicile,  the  courts  of  such  state  hav- 
ing jurisdiction  over  the  husband  and  of  the  subject  matter 
may,  by  virtue»of  the  duty  of  the  wife  to  be  at  the  matrimonial 
domicile,  disregard  an  unjustifiable  absence  therefrom,  treat- 
ing the  wife,  for  the  purpose  of  the  dissolution  of  the  marriage, 
as  having  her  domicile  in  that  state,  and,  as  a  result,  have 
power  to  render  a  judgment  dissolving  the  marriage,  which 
will  be  binding  on  both  parties  and  entitled  to  recognition  -in 

41.    Van  Storch  v.  Griffin,  71  Pa.  42.     McCrery  v.  Davis,  44  S.  C. 

St.   240.  195,  22  S.  ]$.  R.  178.    . 

40 


RULE   IN   FEDERAL  COURTS  §39 

all  other  states.43  It  is  worthy  of  notice  that  tin*  case  of  Ath- 
erton  v.  Atherton  did  not  involve  the  question  of  the  validity 
of  "a  divorce  granted  on  constructive  service,  by  a  court  of  a 
state  in  which  only  one  of  the  parties  ever  had  a  domicile,  nor 
the  question  as  to  what  extent  inquiry  afterward  may  be  made 
into  the  good  faith  of  the  domicile.  The  divorce  was  granted 
by  a  court  of  the  state  which  had  always  been  tin-  unques- 
tioned domicile  of  the  husband,  and  which  was  tin-  only  mat- 
riinonal  domicile  of  the  husband  and  wife.  The  single  question 
decided  was  that  of  the  validity  of  the  divorce,  granted  after 
constructive  notice  had  been  given  in  the  manner  required  by 
the  statute  of  the  state  in  which  the  proceedings  were  had. 

The  case  of  Atherton  v.  Atherton  was  decided  in  1001,  the 
ruling  opinion  having  been  written  by  Mr.  Justice  Gray.  Mr. 
Justice  Peckham  wrote  a  dissenting  opinion,  in  which  the 
chief  justice  concurred,  holding  that  if  the  husband,  in  the 
state  of  the  matrimonial  domicile,  had  been  guilty  of  miscon- 
duct and  cruelty  toward  his  wife  sufficient  to  entitle  her  to  a 
divorce,  she  would  have  a  legal  right,  for  that  reason,  to  leave 
him  and  to  acquire  a  separate  domicile  even  in  another  state, 
and,  if  she  did  this,  the  court  granting  the  divorce  would  not 
obtain  jurisdiction  over  her  as  an  absent  defendant  by  pub- 
lication of  process  or  by  sending  a  copy  thereof  through  the 
mail  to  her  address. 

In  1906  a  somewhat  similar  question  came  before  the  Su-. 
preme  Court  of  the  United  States  in  the  case  of  Haddock  v. 
Haddock,44  on  error  to  the  Supreme  Court  of  the  State  of  Ne\\ 
York,  to  review  a  judgment  entered  pursuant  to  an  order  of 
the  Court  of  Appeals  of  that  state,45  affirming  a  judgment  of 
the  appellate  division  of  the  Supreme  Court  for  the  First  De- 
partment, which  in  turn  affirmed  the  judgment  of  the  Supreme 
Court  for  ttoe  County  of  New  York,  entered  upon  the  report 
of  a  referee  decreeing  a  separation  from  bed  and  board  -with 
an  award  of  alimony.  In  that  ,case  it  was  held  by  a  majority 
of  the  members  of  the  Supreme  Court  of  the  United  States 
that  the  mere  domicile  within  a  state  of  one  party  to  the  mar- 
riage does  not  give  the  courts  of  that  state  jurisdiction  to  ren- 
der a  decree  of  divorce  enforceable  under  the  Federal  consti- 
tution in  all  the  other  states  against  a  non-resident  who  did 

43.  Atherton    v.   Atherton,   181      U.  S.  561,  50  L.  Ed.  867. 

U.    S.    155,   55   L.   Ed.   794,   21   S.          45.     Haddock    v.    Haddock,    178 
C.  R.  544.  N.  Y.  557,  70  N.  E.  R.  1099. 

44.  Haddock  v.  Haddock,   201 

41 


§39  VALIDITY  OF  FOREIGN  DIVORCE 

not  appear  and  Avas  only  constructively  served  with  notice  of 
the  pendency  of  the  action. 

The  facts  in  the  Haddock  case  were  somewhat  different  than 
those  in  the  Atherton  case.  In  the  Atherton  case  the  defend- 
ant in  the  original  divorce  proceeding  was  considered  to  be 
constructively  domiciled  in  the  state  wherein  the.  decree  of 
divorce  was  rendered,  while  in  the  Haddock  case  it  was  con- 
sidered that  the  defendant  was  not  so  domiciled.  In  the  Had- 
dock case  the  wife,  a  resident  of  the  state  of  New  York,  sued 
the  husband  in  that  state  and  there  procured  personal  service 
on  him.  The  parties  were  married  in  New  York  in  1868,  where 
they  both  then  resided  and  where  the  wife  continued  to  reside, 
and  immediately  following  the  marriage  the  husband  aban- 
doned the  wife  and  thereafter  failed  to  support  her.  A  decree 
qf  separation  from  bed  and  board  and  alimony  was  prayed. 
The  defendant  admitted  the  marriage  but  averred  that  its  eel* 
ebration  was  procured  by  the  fraud  of  the  wife,  and  that  im- 
mediately after  the  marriage  the  parties  separated  by  mutual 
consent.  It  also  appeared  that  in  1881  the  husband  obtained 
a  divorce  in  the  state  of  Connecticut,  which  it  was  claimed 
was  a  conclusive  defense  to  the  action  of  the  wife  ,iu  the  state 
of  New  York.  The  notice  of  the  pendency  of  the  action  in  the 
Connecticut  court  was  by  publication  only,  the  wife  not  be- 
ing personally  served,  and  she  did  not  enter  an  appearance  in 
that  court!  In  her  action  in -New  York,  the  wife  was  granted 
a  decree  of  separation  from  bed  and  board  and  an  award  of 
alimony  in  the  sum  of  seven  hundred  and  eighty  dollars  per 
year  from  the  date  of  the  judgment.  This  judgment  was 
affirmed  by  the  Court  of  Appeals  of  the  state  of  New  York, 
and  the  record  was  remitted  to  the  Supreme  Court  of  the  state 
for  execution.  The  husband,  claiming  that  the  judgment  vio- 
lated the  full  faith  and  credit  clause  of  the  Federal  constitu- 
tion,, appealed  to  the  Supreme  Court  of  the  United  States, 
where  the  judgment  of  the  New  York  Supreme  Court  was 
affirmed,  but  by  a  divided  court.  Mr.  Justice  White,  who 
wrote  the  prevailing  opinion,  approved  the  Atherton  case  but 
held  that  where  the  husband  abandons  the  wife  in  the  matri- 
monial domicile  and  the  wife  remains  in  that  domicile  while 
the  husband  acquires  a  domicile  in  another  state,  where  he 
obtains  a  divorce  by  constructive  service,  without  either  per- 
sonal service  or  the  wife's  appearance,  the  court  does  not  ac- 
quire such  jurisdiction  over  the  wife  as  entitles  the  decree  to 
obligatory  recognition  in  the  state  of  the  wife's  domicile, 

42 


Uri.K    IN    1  'Kl'KKAL  COURTS  §39 

though  such  state  may  have  power  to  recognize  such  a  decree 
as  a  matter  of  state  comity,  ami  the  state  wherein  it  was  ren- 
dered may  have  (lie  right  to  enforce  it  within  the  limits  of  its 
jurisdiction. 

It  would  seem  that  these  two  cases.  Atherton  v.  Atherton 
and  Haddock  v.  Haddock,  so  far  as  the  majority  opinions  go, 
are  not  at  all  conflicting  in  principle  as  has  sometimes  been 
supposed,  but  when  considered  together  establish  the  propo- 
sition I  hat  when  a  divorce  has  been  granted  by  a  state  court 
in  favor  of  a  domiciled  citizen  and  against  a  nonresident  de- 
fendant, without  appearance  or  personal  service  of  process, 
the  decree,  though  it  may  be  enforceable  in  the  state  where 
rendered  and  may  be  recognized  extra-territorially  as  a  mat- 
ter of  comity,  may  be  disregarded  by  the  courts  of  sister  states 
without  violating  the  full  faith  and  credit  clause  of  the  Fed- 
eral constitution,  unless  the  defendant,  though  a  nonresident, 
was  constructively  domiciled  in  the  state  of  ttie  fbrum. 


43 


CHAPTER  IV. 
DEFINITION  AND  NATURE  OF  MARRIAGE  CONTRACT. 

§40.  Definition. 

§41.  Nature  of  Marriage  Contract. 

§42.  Who  Capable  of  Contracting  Marriage. 

§43.  Statutory  Definition. 

§44.  Prohibited  Degrees  of  Consanguinity  and  Affinity. 

§45.  Legal  Impediments — Spouse  Living. 

§46.  Same — Competency    of    Parties. 

§40.    Definition. 

The  word  marriage  signifies,  primarily,  the  act  by  which  a 
man  and  woman  unite  for  life,  with  intent  to  discharge  to- 
wards society  and  each  other  those  duties  which  result  from 
the  relation  of  husband  and  wife.1  It  also  implies  an  agree- 
ment of  the  parties,  not  only  to  discharge  the  duties  which 
they  owe  to  each  other  and  to  the  public,  but  also  to  assume 
the  'obligations  imposed  by  the  laws  of  the  country  in  which 

the}'  are  domiciled. 

i  , 

§41.    Nature  of  Marriage  Contract. 

Many  courts  have  held  that  marriage  is  nothing  more  than 
a  civil  contract.  It  is  true  that  to  a  certain  extent  it  is  a 
contract,  since  the  law  always  presumes  and  requires  two 
parties,  of  competent  understanding,"  who  enter  into  a  mutual 
agreement  which  becomes  executed  by  the  act  of  marriage. 
But  it  will  readily  be  seen  that  this  agreement  differs  in 
many  essential  particulars  from  any  other  contract  known 
to  the  law.  The  marriage  contract  is  simply  the  agreement 
of  the  parties  to  enter  into  a  certain  status  or  relation,  the 
rights,  duties  and  obligations  of  which  are  fixed  by  society  in 
accordance  with  the  principles  of  natural  law,  and  are  above 
and  beyond  the  control  of  the  parties  themselves. 

§42.    Who  Capable  of  Contracting  Marriage. 

The  competency  of  the  parties  to  a  marriage  contract  is 

1.     Schouler,      Domestic     Relations,  p.  23. 
44 


PROHIBITED  DEGREES  OF  CONSANGUINITY          §44 

fixed,  regulated  and  controlled  by  the  laws  of  the  state  or 
country  in  which  the  marriage  occurs.  The  Michigan  statute 
provides  that  "every  male  who  shall  have  attained  the  full 
age  of  eighteen  years,  and  every  female  who  shall  have  at- 
tained the  full  age  of  sixteen  years,  shall  be  capable  in  law 
of  marriage,  if  otherwise  competent."  2 

§43.     Statutory  Definition. 

The  statute  also  provides  that  "marriage,  so  far  as  its 
validity  is  concerned,  is  a  civil  contract,  to  which  the  consent 
of  parties  capable  in  law  of  contracting  is  essential."3 

Previous  chastity  is  not  a  requisite  to  the  validity  of  a 
marriage,  and  while  marriage  is  in  a  very  important  sense  a 
contract,  it  is  also  a  relation,  governed  by  rules  of  public 
policy  which  apply  to  no  mere  private  agreements.4  Contract- 
ing marriage  means  the  actual  forming  of  the  marriage  rela- 
tion, and  marriages  are  valid  when  contracted  by  parties  who 
are  of  the  legal  age  of  consent  and  who  are  otherwise 
competent ;  but  executory  contracts  to  marry,  made  by  parties 
under  'the  age  of  twenty-one  years,  have  not  the  legal  force 
necessary  to  sustain  an  action  for  breach  of  promise  to  marry.5 

The  assent  of  both  parties  is  as  essential  to  a  valid  ni;in-i:ijz<' 
as  to  any  other  contract  relation.  Where  one  of  the  parties 
refused  instead  of  giving  consent  to  the  marriage,  there  was 
no  lawful  marriage,  even  although  a  marriage  ceremony  w;is 
performed  by  a  minister  of  the  gospel,  lawfully  authorizcil  to 
solemnize  marriages.6 

§44.    Prohibited  Degrees  of  Consanguinity  and  Affinity. 

In  Michigan  the  prohibited  degrees  of  consanguinity  and 
affinity  as  affecting  men  are  as  follows :  "No  man  shall  marry 
his  mother,  grandmother,  daughter,  granddaughter,  step- 

2.  C.  L.  '15,   (11362);   Howell,  procuring  the  marriage   itself  to 
2nd.  Ed.  §11423.     *  be    carried    out,    and     the     fraud 

3.  C.  L.  '15,   (11363) ;   Howell,  must  usually  be  nearly,  if  not  ab- 
2nd.  Ed.  §11424.  solutely,  coincident  in  time  with 

4.  Lea'vitt  v.  Leavitt,  13  Mich,  the  marriage,  and  operate  to  de- 
456.     "Those   frauds    which    will  stroy     that     intelligent     consent 
invalidate  a  marriage  are  usually,  which   is   required   for   the   mar- 
at  least,  such    as    negative    any  riage  itself." 

consent  to  be  married  at  all,  with-  5.     Frost  v.  Vought,    37    Mich, 

out  reference  to  previous  induce-  65. 

ments.     The  commoner  cases  are  6.    Roszel   v.   Roszel,   73   Mich, 

duress;   surprise  or  stratagem  in  133. 

45 


§45  MARRIAGE    CONTRACT 

mother,  grandfather's  wife,  son's  wife,  grandson's  wife,  wife's 
mother,  wife's  grandmother,  wife's  daughter,  wife's  grand- 
daughter, nor  his  sister,  brother's  daughter,  sister's  daughter, 
father's  sister,  or  mother's  sister,  or  cousin  of  the  first  de- 
gree."7 

The  prohibited  degrees  as  affecting  women  are  as  follows : 
"No  woman  shall  marry  her  father,  grandfather,  son,  grand- 
son, stepfather,  grandmother's  husband,  daughter's  husband, 
granddaughter's  husband,  husband's  father,  husband's  grand- 
father, husband's  son,  husband's  grandson,  nor  her  brother, 
brother's  son,  sister's  son,  father's  brother,  mother's  brother, 
or  cousin  of  the  first  degree."8 

The  prohibition  of  marriage  within  the  degrees  of  Consan- 
guinity and  affinity  named,  applies  whether  the  parties  are 
legitimate  or  illegitimate,  and  it  makes  no  difference  whether 
the  parties  are  of  the  whole  or  half  blood.9 

§45.    Legal  Impediments; — Spouse  Living. 

The  statute  forbids  the  contracting  of  marriage  where  either 
of  the  parties  has  a  former  husband  or  wife  living,  unless  the 
marriage  with  such  former  husband  or  wife  has  been  dis- 
solved.10 

§46.     Same — Competency  of  Parties. 

No  insane  person,  idiot,  or  person  who  has  been  afflicted 
with  syphilis  jor  gonorrhea,  and  who  has  not  been  cured,  is 
competent  to  marry.  The  statute  formerly  prohibited  mar- 
riage between  white  persons  and  persons  of  African  descent, 
but  that  prohibition  has  been  removed,  and  all  such  marriages 
heretofore  contracted  are  declared  valid  for  all  purposes,  .and 
the  issue  of  such  marriage  is  declared  legitimate.  The  statute 
also  makes  it  a  felony  for  any  person  to  marry  who  has  been 
afflicted  with  syphilis  or  gonorrhea  and  who  has  not  been 
cured.  In  all  prosecutions  under  this  statute  a  husband  or 
wife  may  testify  without  the  consent  of  the  other  spouse,  and 
any  physician  who  has  attended  or  prescribed  for  any  husband 
or  wife  for  such  diseases  may  be  compelled  to  testify 'to  any 
facts  discovered  by  him  from  such  attendance. 

7.  C.  L.  '15,    (11364);   Howell,  318;    Bishop   on    Mar.    and    Div. 
2nd.  Ed.   §11425.  §216. 

8.  C.  L.  '15,    (11365) ;    Howell,  10.     C.  L.  '15,   (11366) ;  Howell, 
2nd.  Ed.  §11426.  2nd.  Ed.  §11427. 

9.  People  v.  Jenness,    5    Mich. 

46 


COMPETENCY   OF   PARTIES  §46 

Persons  who  have  been  confined  in  any  public  institution 
as  epileptic,  feeble-minded,  imbecile,  or  insane  patients,  are 
prohibited  from  contracting  marriage  without  filing  in  the 
office  of  th6  county  clerk,  before  the  issuing  of  a  marriage 
license,  a  verified  statement  from  two  regularly  licensed 
physicians  of  this  state  that  a  cure  has  been  affected,  and 
that  there  is  no  probability  that  such  persons  will  transmit 
any  such  defects  or  disabilities  to  the  issue  of  such  marriage.11 

11.    a  L.  16,  (11367) ;  Howell,      2nd.  Ed.  §11423. 


47 


CHAPTER  V. 

MODE  OF  SOLEMNIZING  MARRIAGES. 

§47.  Who  May  Solemnize  Marriage. 

§48.  One  of  the  Parties  to  be  Examined  under  Oath. 

§49.  No  Particular  Form  of  Ceremony  Required. 

§50.  Common  Law  Marriages. 

§51.  Punishment  for  Unauthorized  Marriages. 

§52.  Want  of  Authority  of  Magistrate  or  Clergyman. 

§53.  Denominational  Rites. 

§47.    Who  May  Solemnize  Marriage. 

Marriages  may  be  solemnized  in  Michigan  by  any  justice  of 
the  peace  or  judge  of  probate  in  the  county  in  which  he  was 
chosen,  by  a  judge  of  a  municipal  court  in  the  municipality 
in  which  he  was  chosen,  and  throughout  the  state  by  any 
minister  of  the  gospel  who  has  been  ordained  or  authorized  to 
solemnize  marriages,  according  to  the  usage  of  the  denomina- 
tion to  which  he  belongs,  and  who  is  a  pastor  of  any  church 
or  churches  in  this  state,  or  who  shall  continue  to  preach  the 
gospel  in  this  state.1 

It  is  a  general  rule  that  a  marriage  which  is  valid  where 
it  is  celebrated  is  valid  everywhere,  and  it  has  sometimes 
been  held  that  the  converse  of  this  rule  is  true.2  There  are 
some  exceptions  to  this  rule,  however,  which  will  be  discussed 
under  another  subject.  While  the  statute  authorizes  a  justice 
of  the  peace,  probate  judge,  or  judge  of  a  municipal  court  to 
solemnize  marriages  only  in  the  •  county  or  municipality  in 
which  he  was  chosen,  still  if  any  such  officer  should  solemnize 
a  marriage  outside  his  county  or  municipality,  between  com- 
petent parties,  and  such  marriage  is  followed  by  the  parties' 
living  and  cohabiting  together  as  husband  and  wife,  it  is  a 
valid  marriage  for  all  purposes.3- 

The  validity  of  a  marriage  solemnized  in  another  state  must 
be  determined  by  the  laws  of  such  state.  This  is  especially 

1.  C.  L.  '15,    (11368);   Howell,      Mich.  131. 

2nd.  Ed.   §11429.  3.     People  v.   Girdler,  65  Mich. 

2.  Hutchins     v.     Kimmell,     31      68. 

48 


COMMON    LAW    MARRIAGE  §50 

true  where  the  question  of  the  validity  of  such  marriage  arises 
in  a  criminal  prosecution.  Thus,  where  in  a  prosecution  for 
bigamy  the  first  marriage  is  alleged  to  have  been  celebrated  in 
another  state,  proof  not  only  of  a  marriage  in  fact  hut  of  a 
valid  marriage  according  to  the  laws  of  that  state  must  be 
made  by  the  prosecution.  And  if  it  appears  that  the  law  of 
the  state  where  the  first  marriage  Was  celebrated  is  statutory, 
it  cannot  be  presumed,  against  the  presumption  of  in  HIM -<MI< •«• 
of  the  defendant,  that  such  law  is  the  same  as  that  of  the 
state  where  the  prosecution  is  had,  but  it  must  be  proved  by 
copies,  authenticated  in  some  manner  authorized  by  law.4 

§48.    One  of  the  Parties  to  be  Examined  under  Oath. 

Persons  authorized  to  perform  marriage  ceremonies  in 
Michigan  are  required,  before  doing  so,  to  examine  at  l»-a>i 
one  of  the  parties  on  oath  as  to  the  legality  of  the  intended 
marriage,  and  such  persons  are  authorized  to  administer  oaths 
for  that  purpose.5  While  the  neglect  of  the  magistrate  or 
minister  to  comply  with  this  provision  of  the  statute  probably 
would  not  invalidate  the  marriage,  especially  if  it  should  !»«• 
followed  by  the  parties  to  the  marriage  living  and  cohabiting 
together  as  husband  and  wife  and  certainly  would  not  l»as 
tardize  the  offspring  of  such  marriage,  still,  for  his  own 
protection,  the  magistrate  or  clergyman  always  should  ol>- 
serve  this  requirement  strictly  according  to  the  statute.6 

§49.    No  Particular  Form  of  Ceremony  Required. 

In  solemnizing  marriages  in  Michigan  no  particular  form  of 
ceremony  is  required  to  be  used,  except  that  the  parties  must 
solemnly  declare,  in  the  presence  of  the  officiating  magistrate 
or  clergyman  and  the  attending  witnesses,  that  they  take  each 
other  as  husband  and  wife,  and  there  must  be  at  least  two 
witnesses  to  the  marriage  besides  the  officiating  magistrate  or 
clergyman.7 

§50.    Common  Law  Marriages. 

The    marriage   relation    may   be   established    without   any 

4.     People  v.  Lambert,  5  Mich.  5.  C.  L.  '15,    (11369) ;   Howell, 

349.     (It  is  no  defense  to  a  charge  2nd.  Ed.  §11430. 

of  bigamy  that  the  second  mar-  6.  Bonker  v.  People,  37  Mich, 

riage  was  between  a  negro  and  a  10. 

white  woman  and  void  under  the  7.  C.  L.  '15,    (11370) ;   Howell, 

statute) :     People    v.    Brown,    34  2nd.  Ed.  §11431. 
Mich.  339. 

49 


§4:7  MODE   OF   SOLEMNIZING    MARRIAGES 

actual,  formal  ceremony  by  a  magistrate  or  clergyman,  if  the 
parties  are  competent  to  marry  and  agree  to  take  each  other 
as  husband  and  wife,  and  such  agreement  is  followed  by  con- 
tinued cohabitation  as  such.8 

In  the  case  of  Peet  v.  Peet,  52  Mich,  at  page  467,  Justice 
Cooley,  who  wrote  the  opinion,  says:  "But  an  actual  cere- 
mony of  marriage  is  not  essential  to  the  establishment  of  the 
relation  of  husband  and  wife;  it  is  sufficient  that  a  man  and 
woman  of  due  competency,  in  respect  to  whom  no  impediment 
exists,  consent  to  take  each  other  as  husband  and  wife  and 
actually  cohabit  as  such.  The  case  of  Hutchins  v.  Kimmell, 
31  Midi.  126,  18  Am.  R.  164,  determines  this  for  this  state, 
and  refers  to  manv  decisions  in  other  states,  to  the  same/ 
effect."9 

But  where  a  man  and  woman  agreed  to  live  together  as  man 
and  wife,  and  by  the  terms  of  such  agreement  each  party 
retained  the  right  to  control  and  dispose  of  his  or  her  own 
property  without  question  by  the  other,  it  was  held  by  a 
majority  of  the  Supreme  Court  that  the  relation  of  the  parties 
was  that  of  concubinage  and  not  a  valid  marriage,  although 
the  agreement  was  followed  by  continued  cohabitation  for  a 
considerable  time.  Justice  Morse  dissented  from  the  opinion 
of  the  majority  of  the  court,  and  contended  that  the  written 
agreement  between  the  parties  was  a  valid  contract  of  mar- 
riage, and,  being  followed  by  cohabitation,  established  a  valid 
marriage.10  The  written  agreement  entered  into  between  the 
parties  did  not  contain  a  declaration  of  the  parties  that  they 
agreed  to  take  each  other  as  husband  and  wife,  but  that  they 
agreed  "to  live  together  as  man  and  wife." 

Where  the  relationship  otf  a  man  and  woman  living  together 
is  illegal  in  its  commencement,  it  is  presumed  to  continue 
illegal  until  a  changed  relationship  is  proved.  Subsequent 
actual  marriage  will  not  be  presumed  from  continued  cohabi- 
tation/and reputation  after  the  legal  impediment  to  entering 
into  such  a  contract  is  removed.11 

8.     Peet  v.  Peet,   52  Mich.   467;  9.     Peet   v.   Peet,   52  Mich.   467. 

Hutchins    v.    Kimmell,    31    Mich.  10.     Clancy  v.  Clancy,  66  Mich. 

126:     Williams    v.      Kilburn,     88  202,  33  N.  W.  889. 

Mich.   279;    Flannagah  v.  Flanna-  11.     Rose    v.     Rose,     67     Mich, 

gan,    122    Mich.    387;    Knights    of  619,  35  N.  W.  802;   Van  Dusan  v. 

Maccabees      v.      McAllister,      132  Van    Dusan,    97    Mich.    70,    56    N. 

Mich.  69.  W.  234. 

50 


rr.\isiiMi:vr  FOR   r.\.\rTi[oi;r/.i-:n    MAI;  IMAGES  §51 


§51.    Punishment  for  Unauthorized  Marriages. 

The  statute  provides  thai  "il'  any  person  sliall  undertake  to 
join  others  in  marriage,  knowing;  that  he  is  not  lawfully 
authorized  to  do  so,  or  knowing  of  any  legal  impediment  to 
the  proposed  marriage,  he  shall  be  guilty  of  a  misdemeanor, 
and  upon  conviction  thereof  shall  be  punished  by  imprison- 
ment in  the  county  jail  not  more  than  one  year,  or  by  line  not 
less  than  fifty  nor  more  than  live  hundred  dollars,  in  the  dis- 
«  ret  ion  of  the  court."12  ' 

This  si  ;i  I  ute  applies  to  a  marriage  where  either  of  the 
parties  is  under  the  age  of  consent.  The  fact  that  the  mar- 
riage is  prohibited  by  the  statute,  by  reason  of  one  or  both  of 
the  parties  being  under  the  age  of  consent,  is  no  defense  to  a 
prosecution  under  this  section.  Such  marriage  is  not  abso- 
lutely void,  but  only  voidable  at  the  option  of  the  incompetent 
party. 

In  the  case  of  Bonker  v.  People  the  charge  made  in  the 
information  was  that  the  respondent,  "being  then  and  there  a 
justice  of  the  peace  of  said  township  and  in  and  for  said 
county,  unlawfully  did  undertake  to  join  in  marriage  Frank 
Bogart  and  Ann  Eliza  Davis,  she,  the  said  Ann  Eliza  Davis. 
being  then  and  there  a  female  under  the  age  of  sixteen  years, 
to-wit:  of  the  age  of  thirteen  years,  and  not  capable  in  law  of 
contracting  marriage  ;  and  the  age  of  said  Ann  Eliza  Davis  be- 
ing then  and  there  a  legal  impediment  to  the  said  proposed  mar- 
riage, he,  the  said  William  Bouker,  then  and  there  and  at  the 
time  he  undertook  to  join  the  said  Frank  Bogart  and  the  -;iM 
Ann  Eliza  Davis  in  marriage,  well  knowing  that  the  said  Ann 
Eliza  I>avis  was  then  and  there  a  female  under  the  a-'  of 
sixteen  years."  On  behalf  of  the  respondent  it  was  con  ten  <  I.  -.1 
that  an  "impediment"  within  the  meaning  of  the  statute  is 
only  that  which  absolutely  precludes  the  marriage  being 
formed,  such  as  relationship  within  the  prohibited  degree  or  a 
previous  marriage  not  dissolved,  and  that  as  a  marriage  of  a 
party  under  the  age  of  consent  would  not  be  void,  but  only 
voidable,  the  want  of  legal  age  of  consent  would  not  constitute 
an  impediment  to  the  marriage. 

In  considering  this  question  the  Supreme!  Court  say:  "This 
argument  would  apply  equally  well  to  a  marriage  accom- 
plished by  force  or  fraud,  such  marriages  being  voidable  only, 
and  would  protect  a  magistrate  though  the  facts  were  all 

12.     C.  L.  '15,   (11372)  ;   Bonker  v.  People,  37  Mich.  4. 

51 


§52  MODE  OF   SOLEMNIZING   MARRIAGES 

> 

known  to  him.  We  doubt  the  validity  of  this  argument,  and 
should  be  inclined  to  hold  that  whatever  is  in  the  way  of  a 
valid  marriage  must  be  understood  to  constitute  such  'an 
impediment  as  the  statute  has  in  viewl  The  statute  authorizes 
certain  marriages  and  does  not  authorize  others;  it  points  out 
what  should  prevent  or  impede  them.  But  it  is  not  necessary 
to  rest  the  case  upon  this  view,  for  when  the  statute  does  not 
authorize  a  certain  marriage,  the  magistrate  cannot  be  'au- 
thorized'  to  join  the  persons  in  marriage.  The  age  of  consent  in 
a  female  is  fixed  by  the  statute  at  sixteen  years;  and  though 
the  law,  in  view  of  the  serious  consequences  which  might  fol-' 
low  from  treating  all  marriages  void  where  one  of  the  parties 
is  under  the  age  of  consent,  holds  them  voidable  only,  it  never- 
theless does  not  authorize  them.  Like  a  fraudulent  marriage 
they  are  unauthorized,  for  consent  is  the  first  requisite  in 
marriage,  and  in  this  case  the  capacitv  to  consent  is  withheld 
by  law."13 

§52.    Want  of  Authority  of  Magistrate  or  Clergyman. 

Marriages  solemnized  before  any  person  professing  to  have 
authority  to  act  in  such  capacity  are  not  deemed  void  for 
want  of  jurisdiction  or  authority  in  such  person  if  the  mar- 
riage is  consummated,  with  a  full  belief  on ••  the  part  of  the 
parties  so  married  or  either  of  them,  that  they  have  been 
lawfully  joined  in  marriage.14 

§53.    Denominational  Rites. 

The  statute,  so  far  as  it  relates  to  the  manner  of  solemniz- 
ing marriages,  does  not  affect  marriages  among  Quakers,  nor 
marriages  among  people  of  any  other  denomination  having,  as 
such,  any  peculiar  mode  of  solemnizing  marriages.15 

13.  Bonker  v.  People,  37  Mich.       2nd.  Ed.  §11434. 

4.  15.     C.  L.  '15,   (11374) ;  Howell, 

14.  C.  L.  '15,  (11373);  Howell,       2nd.  Ed.  §11435. 


52 


CHAPTER  VI. 
PROOF  OF  .MARRIAGE. 

§54.  Certificates  and  Licenses  as  Evidence. 

§55.  Record  of  Marriages  Continued. 

§56.  Duty  of  County  Clerk. 

§57.  Marriage  Licenses. 

§58.  Affidavit  of  Party  Applying  for  License. 

§59.  Duties   of  County  Clerk. 

§60.  Duty  of  Magistrate  or  Clergyman. 

§61.  Penalties  for  Violation. 

§62.  Record  as  Evidence. 

§63.  Marriages  to  Protect  Reputation. 

§64.  Application  For  a  License — Form  of  Application. 

§65.  Judge  of   Probate   to   File  Papers — Inspection  of  Record. 

§66.  Privilege — Penalties   for   Divulging  or  Publishing,  Etc. 

§54.    Certificates  and  Licenses  as  Evidence. 

"The  original  certificate  and  records  of  marriage  made  by 
a  minister  or  a  justice,  as  prescribed  in  this  chapter,  and  the 
record  thereof  made  by  the  county  clerk,  or  a  copy  of  such 
record  duly  certified  by  such  clerk,  shall  be  received  by  all 
courts  and  places  as  presumptive  evidence  of  the  fact  of  such 
marriage."1 

§55.    Record  of  Marriages  Continued. 

All  persons  authorized  by  law  to  solemnize  marriages  in 
this  slate  are  required  by  statute  to  make  a  record  of  such 
marriage  so  solemnized  by  them,  and  every  clerk  or  keeper  of 
the  records  of  the  meetings  in  which  any  marriage  among 
Friends  or  Quakers  shall  be  solemnized,  is  also  required  to 
make  a  record  of  such  marriage,  together  with  all  of  the  facts 
relating  to  the  same.  They  are  also  required  to  deliver  on 
•  Iciiuind  to  «'ithor  of  the  parties  so  joined  in  marriage  a  cer- 
tificate of  such  marriage,  containing  all  of  the  facts  in  relation 
thereto.  Within  ninety  days  after  such  marriage  a  certified 
copy  of  such  certificate  must  be  delivered  to  the  clerk  of  the 

1.     C.   L.  '15,    (11375);   Howell,  2nd.  Ed.  §11436. 

53 


§56  PROOF   OP    MARRIAGE 

county  in  which  such  marriage  took  place  and  a  fee  of  twenty- 
five  cents  paid  for  recording  the  same.2 

If  the  certificate  signed  by  the  officiating  magistrate  or 
minister  is  filed  with  the  county  clerk  within  the  time  inquired 
by  the  statute,  it  is  competent  evidence  of  the  fact  of  marriage 
without  proof  of  the  signature  of  the  officiating  magistrate  or 
minister;  but  if  not  filed  within  that  time  other  evidence  of 
the  marriage  must  be  produced.3 

§56.    Duty  of  County  Clerk. 

It  is  the  duty  of  the  county  clerk,  on  receiving  the  certificate 
of  such  marriage,  to  record  the  same  at  length  in  a  book  to  be 
provided  at  the  expense  of  the  state,  by  the  secretary  of  state. , 
Such  book  must  be  properly  indexed,  using  the  names  of  both 
parties  to  the  marriage,  and  the  marriages  numbered  and 
recorded  in  the  order  in  which  the  certificates  are  received. 
The  record  of  marriages  must  state,  in  separate  columns,  the 
t  Christian  and  surnames  of  the  bridegroom  and  bride,  the 
maiden  name  of  the  bride  if  a  widow,  the  color,  age  and  place 
of  birth  of  each,  the  residence  of  each  at  the  time  of  the  mar- 
riage, the  occupation  of  the  bridegroom,  and  the  name  and 
official  status  of  the  persons  by  or  before  whom  the}*  were 
married;  the  name  and  residence  of  at  least  two  witnesses 
present  at  such  marriage,  and  the  date  when  such  record  was 
made.4 

The  record  of  marriages  is  not  regarded  in  law  as  the  best 
evidence  of  the  fact,  and,  except  in  criminal  cases  and  actions 

2.  C.    L.    '15,    (5613) ;    Howell,  office  until  March  22,  1889,  while 
2nd.   Ed.    §1556;    Pub.   Acts   1905,  the    trial    was    in    progress.      It 
Page  508,   as    to    registration    of  was  conceded  that  the  justice  was 
births.  dead  and  no  evidence  was  offered 

3.  People   v.    Etter,     81    Mich.  showing   his   hand   writing.     The 
570.     This  was  a  prosecution  for  Supreme   Court   held   that   if  the 
carnal  knowledge  of  a  girl  -under  paper    had    been    filed    with    the 
the  age  of  consent,  and  as  bear-  county   clerk   within  ninety  days 
ing   on   the   age   of   the   girl   the  after  the  marriage,  as  the  statute 
prosecution  was  permitted  to  put  required,     it    would     have     been 
in  evidence  what  purported  to  be  competent    evidence,    but    to    al- 
a   certificate   of   the   marriage   of  low  it  to  be  brought  in  after  such 
the  girl's  father  and  mother,  pur-  a  lapse  of  time  was  not  permis- 
porting  to  have  been  made  by  the  sible  and  it  should  have  been  ex- 
justice   who   performed   the   mar-  eluded. 

riage    ceremony.     The    certificate          4.     C.    L.    '15,    (5613);    Howell, 
bore  date  December  17,  1873,  but      2nd.  Ed.  §1557. 
was  not  filed  in  the  county  clerk's 

54 


M. \KKI\CI;   i.ici:.\si:s  §57 

for  seduction  or  criminal  con\  ersai  inn.  tin-  marring'  may  he 
proved  by  other  e\  idence,  such  as  Ilia)  the  parlies  have  jointly 
signed  papers  in  that  relation,  have  lived  together  .is  husband 
and  wile  and  raised  a  family,  have  treated  each  other  on  all 
occasions  as  husband  and  wife,  are  accustomed  to  address 
each  other  as  such,  and  were  so  regarded  by  their  family, 
relatives,  friends,  ami  neighbors.5 

In  actions  involving  adultery,  seduction,  or  criminal  conver- 
sation, the  criminal  intercourse  must  be  substantially  averred 
and  there  must  be  proof  of  an  actual  marriage.  Tn  such  cases 
proof  of  general  reputation,  or  that  the  parties  were  accus- 
tomed to  address  each  other  as  husband  and  wife,  is  not  snf- 
ficient." 

§57.     Marriage  Licenses. 

It  is  necessary  for  all  parties  intending  to  be  married  in 
Michigan  to  obtain  a  marriage  license  from  the  county  clerk 
of  the  county  in  which  one  of  the  parties  resides,  and  to  deliver 
such  license  to  the  magistrate  or  clergyman  who  is  to  officiate, 
before  the  marriage  ceremony  can  be  performed.  If  neither  of 
the  parties  to  be  married  reside  in  this  state,  it  is  necessary  to 
procure  such  license  from  the  county  clerk  of  the  county  in 
which  the  marriage  ceremony  is  to  be  performed.7 

The  secretary  of  state  is  required  to  prepare  and  furnish  to 
tile  several  county  clerks  of  the  state,  blank  forms  for  mar- 
riage license  and  certificate,  also  books  of  registration.  The 
blank  forms  for  license  and  certificate  must  be  made  in  dupli- 
cate, and  provide  space  for  the  entry  of  the  full  name,  age, 
color,  place  of  residence,  place  of  birth,  occupation,  and,  if 
kno\\i,.  the  father's  name  and  mother's  maiden  name  of  both 
of  the  parties  to  be  married,  the  number  oftftimes  either  of 
the  parties  may  have  been  previously  married,  the  bride's 
maiden  name  in  case  she  is  a  widow,  the  date  of  giving  the 
license,  the  names  and  residences  of  two  witnesses  to  the 
marriage,  and  the  certification  of  the  officiating  clergyman  or 
magistrate  that  the  marriage  contemplated  by  the  license  has 
been  performed  by  him.8 

5.  Proctor  v.  Bigelow,  38  Mich.  7.     C.  L.  '15,    (11376) ;    Howell, 
282.  2nd.  Ed.  511437. 

6.  Perry  v.   Lovejoy,   49  Mich.  8.     C.   L.  '15.    (11377);    Howell, 
529,  14   N.   W.   485;    Hutchins   v.  2nd.  Ed.  §11438. 

Kimraell,  31  Mich.  126. 

55 


§58  PROOF   OF    MARRIAGE 

§58.    Affidavit  of  Party  Applying  For  License. 

The  party  applying  for  a  license  to  marry  must  cause  an 
affidavit  to  be  made  and  filed  with  the  county  clerk  containing 
the  necessary  allegations,  under  the  laws  of  this  state,  of  the 
competency  of  the  parties  to  unite  in  the  bonds  of  matrimony. 
Such  affidavit, 'together  with  the  license,  is  made  a  matter  of 

record  in  the  county  clerk's  office.9 

i 

§59.    Duties  of  County  Clerk. 

The  county  clerk  is  required  to  fill  out  the  blank  spaces  of 
the  license  according  to  the  sworn  answers  of  the  applicant 
taken  before  him  or  some  person  duly  authorized  by  law  to 
administer  oaths.  If  the  application  is  for  the  marriage  of  a 
female  who  has  not  attained  the  age  of  eighteen  years,  it  is 
the  duty  of  the  county  clerk  to  whom  such  application  is  made 
to  require  the  written  consent  of  one  of  the  parents  of  such 
female,  or  of  her  legal  guardian,  to  the  marriage  of  such 
female  and  to  the  issuing  of  the  license  for  which  application 
is  made,  unless  such  female  have  no  parent  or  guardian  living. 
Such  written  consent  is  required  to  be  preserved  on  file  in  the 
office  of  the  county  clerk. 

The  county  clerk  is  entitled  to  a  fee  of  fifty  cents  for  his 
services,  and  he  is  required  to  make  a  correct  copy  of  the 
affidavit  and  license  in  the  book  of  registration  of  marriages. 
The  license,  together  with  the  blank  form  of  certificate,  must 
be  delivered  by  the  applicant  to  the  clergyman  or  magistrate 
who  is  to  officiate  at  the  marriage.  After  the  marriage  has 
been  solemnized,  the  clergyman  or  magistrate  who  officiated 
must  return  the  license,  with  his  certificate  that  the  marriage 
has  been  performed,  and  the  clerk  must  record  in  the  book  of 
registration  of  marriages  the  names  and  residences  of  the 
witnesses  to  the  marriage  and  the  name  of  the  officiating 
clergyman  or  magistrate.  All  such  licenses  and  certificates 
must  be  preserved  on  file  in  the  office  of  the  county  clerk,  and 
as  often  as  once  in  three  months  the  clerk  is  required  to  make 
a  report  to  the  secretary  of  state  of  all  licenses  and  certificates 
issued  by  him  since  his  last  report.10 

The  marriage  license  and  the  certificate  of  the  officiating 
magistrate  or  clergyman,  and  the  record  thereof  in  the  office 
of  the  county  clerk,  are  public  records.  They  are  open  to 

9.     C.  L.  '15,    (11377) ;   Howell,  10.     C.  L.  '15,   (11378) ;  Howell, 

2nd.  Ed.  §11438.  2nd.  Ed.  §11439. 

56 


PHXALT1ES  FOU  VIOLATION  §61 

inspection  for  any  lawful  purpose  and  the  clerk  has  no  right 
to  withhold  them.  Mandamus  will  lie  by  the  publisher  of  a 
newspaper  to  require  him  to  permit  reporters  of  the  paper  to 
examine  them,  and  he  has  no  discretion  to  withhold  them  from 
inspection  when,  in  his  opinion,  publication  of  their  contents 
is  undesirable.11 

All  oflicers  having  the  custody  of  any  county,  city,  township, 
town,  village,  school  district,  or  other  public  records,  are 
required  by  statute  to  furnish  proper  and  reasonable  facilities 
for  the  inspection  and  examination  of  the  records  and  files  in 
their  respective  offices,  and  for  making  memoranda  and  tran- 
scripts therefrom  during  the  usual  business  hours,  to  all 
persons  having  occasion  to  examine  them  for  any  lawful  pur- 
pose. The  custodian  of  such  records  may  make  such  reason- 
able rules  and  regulations  with  reference  to  such  inspection 
and  examination  as  shall  be  necessary  for  the  protection  and 
preservation  of  such  records  and  files,  and  to  prevent  inter- 
ference with  the  regular  discharge  of  the  duties  of  his  office. 
The  use  of  pen  and  ink  in  making  memoranda,  copies  or  notes 
of  such  records  and  files,  is  prohibited  by  statute.12 

§60.    Duty  of  Magistrate  or  Clergyman. 

The  magistrate  or  clergyman  who  officiates  at  any  marriage 
is  required  to  fill  out  the  blank  spaces  of  his  certificate  and 
return,  stating  the  name  and  residence  of  two  witnesses  over 
his  own  signature  in  certification  that  the  marriage  has  been 
performed  by  him.  Such  magistrate  or  clergyman  must  sep- 
arate the  duplicate  license  and  certificate  and  retain  one  half 
for  his  own  record  and  return  the  other  half  to  the  county 
clerk  issuing  the  same  within  ten  days  after  the  marriage.13 

§61.    Penalties  for  Violation. 

Any  county  clerk  who  refuses  to  give  a  license  to  persons 
property  applying  and  legally  entitled  to  be  married,  or  who 
shall  violate  any  of  the  provisions  of  the  statute  in  relation  to 
marriages,  shall  be  adjudged  guilty  of  a  misdemeanor  and  on 
conviction  may  be  punished  by  a  line  of  not  less  than  twenty- 
five  dollars  nor  more  than  one  hundred  dollars,  and  in  default 

11.  Kalamazoo   Gazette   Co.   v.      2nd  Ed.  §1449;   P.  A.  1913,  Page 
County  Clerk,  148  Mich.  460,  101      102. 

X    W.  1070.  13.     C.  L.  '15,  (11379) ;  Howell. 

12.  C.  L.  '15,    (3448) ;    Howell,      2nd.  Ed.  §11441. 

57 


§61  PROOF    OF    MARRIAGE 

of  payment  of  such  fine,  by  imprisonment  in  the  county  jail 
not  more  than  thirty  days.14 

"Any  clergyman  or  magistrate  who  shall  join  together  in 
marriage  parties  who  have  not  delivered  to  him  a  properly 
issued  license,  as  provided  for  in  this  act,  or  who  shall  violate 
any  of  the  provisions  of  this  act,  shall  be  adjudged  guilty  of  a 
misdemeanor,  and  shall  be  punished  by  a  fine  of  one  hundred 
dollars,  or  in  default  of  payment  thereof,  by  imprisonment  in 
the  county  jail  for  a  term  of  ninety  days."15 

In  the  case  of  People  v.  McLaughlin,  108  Mich.  516  (6G 
N.  W.  385),  it  was  charged  that  the  respondent,  a  clergyman, 
"did  join  together  in  marriage  James  F.  McNames  and  Emma 
Nogle,  they  nor  either  of  them  having  delivered  to  him  a 
properly  issued  license."  The  trial  resulted  in  conviction.  At 
the  time  the  marriage  ceremony  was  performed  James  Mc- 
Names  had  a  former  wife  living.  He  represented  to  the 
clergyman  that  he  had  applied  for  a  license  and  that  it  had 
been  issued  and  at  the  time  of  the  marriage  was  on  its  way  in 
the  mail,  although  as  matter  of  fact  he  had  made  no  sudh 
application  and  no  license  had  been  issued  to  him.  After  trial 
and  conviction  the  respondent  appealed,  and  on  the  hearing  in 
the  Supreme  Court  two  questions  were  raised  by  his  counsel. 
First,  that  the  statute  under  which  the  prosecution  was 
brought  was  unconstitutional  and  void  because  the  act  em- 
braced more  than  one  object.  Second,  that  the  performance 
of  the  marriage  ceremony  was  a  nullity  for  the  reason  that 
one  of  the  parties  was  incompetent  to  marry,  and  conse- 
quently the  respondent  could  not  legally,  and  therefore  did 
not,  join  the  parties  together  in  marriage.  The  Supreme 
Court  held  that  the  law  was,, constitutional  and  that  the  title 
of  the  act,  "An  act  requiring  a  civil  license  in  order  to  marry 
and  the  due  registration  of  the  same,  and  to  provide  a  penalty 
for  a  violation  of  the  provisions  of  the  same."  was  broad 
enough  to  cover  the  provisions  of  the  act,  and  that  its  pro- 
visions are  all  germane  to  the  object  expressed  in  the  title. 
As  to  the  second  question,  the  court  overruled  the  contention 
of  respondent's  counsel  with  little  comment,  saying:  "It  is 
only  necessary  to  state  these  propositions  to  show  how  illog- 
ical they  are,"  and  holding  that  the  fact  that  one  of  the  parties 

14.  C.  L.  '15,   (11380);  Howell,       2nd.    Ed.    §11442;    People    v.    Mc- 
2nd  Ed.   §11441.  Glaughlin,  108  Mich.  516,  66  N.  W. 

15.  C.  L.  '15,   (11381);  Howell,       385. 

58 


.\IAI;KIAI;I:S  TO  I-UOTI:IT  ui:ri  r.\rio.\  §63 

\\a>  under  a  legal  disability  to  enter  into  the  marriage  relation 
was  no  defense.18 

The  statute  further  provides  that  "any  person  whose  duty 
it  shall  lie  to  return  a  marriage  certificate  to  tin-  county  clerk, 
who  shall  neglect  to  return  such  certificate,  shall  \H>  adjudged 
guilty  ol'  .1  inisdeiiieanor.  ami  shall  be  punished  by  a  line  not 
exceeding  one  hundred  dollars  or  ninety  days'  imprisonment. 
01  both,  in  the  discretion  of  the  court.17 

Any  ajtplicant  for  a  marriage  license  who  swears  to  a  false 
statement  in  the  application  is  guilty  of  perjury,  and  may  be 
punished  therefor  under  the  general  laws  of  the  state.18 

All  reports  of  marriages  sent  by  county  clerks  to  the  secre- 
tary of  state  are  required  to  be  preserved  on  file  in  the  office 
of  the  secretary  of  state,  and  a  proper  record  made  thereof 
and  kept.19 

§62.     Record  as  Evidence. 

The  record  of  any  license  to  marry,  or  of  any  marriage 
certificate,  in  any  count)'  clerk's  office,  or  certified  copy  of 
such  record,  is  prinni  facie  evidence  in  any  court  or  proceed- 
ings in  this  state,  with  the  same  force  and  effect  as  though  the 
original  ware  produced,  both  as  to  the  facts  therein  contained 
and  as  to  the  genuineness  of  the  signatures  thereto.20 

§63.     Marriages  to  Protect  Reputation. 

While,  as  has  been  shown,  the  record  of  marriages  kept  in 
the  office  of  the  county  clerk  is  a  public  record  and  open  to 
inspection  for  any  lawful  purpose,  the  statute  provides  that 
for  the  protection  of  the  reputation  and  good  name  of  certain 
persons  under  certain  circumstances,  the  judge  of  probate  may 
i--sue  a  marriage  license,  perform  the  marriage  ceremony,  and 
make  a  record  thereof,  which  is  not  open  to  public  inspection 
by  anyone  for  any  purpose,  unless  by  order  of  a  court  of 
competent  jurisdiction  on  certain  conditions.21 

The  statute  provides  that  "the  judge  of  probate  of  each 
county  in  this  state  shall  have  authority  and  it  shall  be  his 
duty  to  issue,  without  publicity,  a  marriage  license  to  any 

16.  People  v.  McGlaughHn,  108      2nd.  Ed.  511445. 

Mich.   516.  66  N.  W.  385.  20.     C.  L.  '15,   (11385);  Howell, 

17.  C.  L.  '15,  (11382);  Howell,  2nd.     Ed.     811446;     Cummins     & 
2nd.  Ed.  §11443.  Beecber's    Mich.    Judicature    Act, 

18.  C.  L.  '15,  (11383) ;  Howell,  §654. 

2nd.   Ed.  5511444.  21.     C.  L.  '15,   (11387);  Howell, 

19.  C.   L.  15,   (11384);  Howell.      2nd.  Ed.  811448. 

59 


§64  PROOF    OF    MARRIAGE 

female  making''  application  to  him  under  oath  containing  a 
statement  that  she  is  with  child,  which  if  born  alive  before  her 
marriage  will  become  a  bastard,  or  has  lived  with  a  man  and 
had  been  considered  as  his  wife,  or,  for  other  good  reason 
expressed  in  such  application  and  deemed  sufficient  by  the 
judge  of  probate,  desires  to  keep  the  exact  date  of  the  mar- 
riage secret  to  protect  the  good  name  of  herself  and  the 
reputation  of  her  family."22 

Under  this  statute  the  judge  of  probate  has  authority  to 
marry  persons  under  marriageable  age  in  cases  where  the 
female  is  with  child  or  where  she  has  been  living  with  some 
man  as  his  wife,  in  case  the  application  for  such  license  is 
accompanied  by  the  written  request  of  the  parents  of  both 
parties,  if  living,  and  their  guardian  or  guardians  if  either  or 
both  of  the  parents  are  dead,  or  by  the  written  request  of  the 
parent  or  .guardian,  as  the  case  may  be,  of  the  one  under 
marriageable  age  as  fixed  by  the  statute,  when,  according  to 
his  judgment,  such  marriage  would  be  a  benefit  to  public 
morals.23 

§64.    Application  For  a  License — Form  of  Application. 

The  application  for  a  license  to  marry  under  the  act  entitled 
"An  Act  to  Provide  for  the  Protection  of  the  Reputation  and 
Good  Name  of  Certain  Persons"  is  required  to  be  in  the  usual 
form. 

In  addition  to  the  usual  form,  the  application  must  state 
that  the  female  is  with  child  or  that  she  has  lived  with  a  man 
and  been  considered  his  wife,  and  it  must  be  accompanied  by 
a  fee  of  three  dollars,  two  dollars  of  which  is  for  the  judge  of, 
probate  for  his  services,  and  one  dollar  for  the  secretary  of 
state  as  his  fee  for  performing  the  services  required  of  him  by 
the  statute. 

Upon  the  filing  of  the  application  and  issuing  of  the  license 
it  is  the  duty  of  the  judge  of  probate  to  perform  the  marriage 
ceremony  unless  the  applicant  or  one  of  the  parties  to  the 
contemplated  marriage  desires  to*  have  the  ceremony  per- 
formed by  some  other  person  competent  to  solemnize  mar- 
riages, in  which  case  the  judge  of  probate  is  required  to  issue 
a  written  permit  to  the  person  designated  by  the  applicant  or 
contracting  parties,  directing  him  to  perform  such  marriage 
ceremony.  The  party  so  designated,  if  competent  to  perform 

22.     C.  L.  '15,   (11387) ;  Howell,  23.     C.  L.  '15,   (11387) ;  Howell, 

2nd  Ed.    §11448.  2nd.  Ed.  §11448. 

60 


PRIVILEGE  §66 

the  marriage  ceremony  under  the  general  laws  of  the  state,  is 
thereby  empowered  to  perform  such  marriage  ceremony,  but 
no  record,  except  the  record  made  by  the  judge  of  probate 
pursuant  to  the  statute,  shall  be  made  of  such  marriage.  Upon 
the  performance  of  such  marriage  ceremony,  the  person  per- 
forming it  is  required  to  return  the  marriage  certificate  to  the 
judge  of  probate,  who  then  is  required  to  attach  the  certificate 
and  license  to  the  application.  All  of  the  papers  are  required 
to  be  executed  in  duplicate,  and  the  person  who  performs  such 
marriage  ceremony  is  required  to  deliver  a  certificate  of  such 
ni.-irrijige  to  the  bride.2* 

§65.    Judge  of  Probate  to  File  Papers; — Inspection  of  Record. 

The  judge  of  probate  is  required  to  file  all  the  papers  in  such 
case  in  a  private  file,  and,  within  ten  days  after  the  marriage, 
forward  the  duplicate  thereof  to  the  secretary  of  state,  who  is 
also  required  to  keep  such  duplicate  in  a  private  file  and  to 
lecord  tlie  same  in  a  private  register. 

Such  private  file  in  the  probate  court,  and  the  duplicate  and 
record  thereof  in  the  office  of  the  secretary  of  state,  are  open 
to  inspection,  only  on  a  written  order  of  a  judge  of  the  circuit 
court,  or  of  the  supreme  court,  and  only  for-  the  use  designated 
in  the  order.  No  such  order  can  be  made  except  upon  the 
written  request  of  the  person  or  persons  who  were  so  married, 
or  when  necessary  to  the  protection  of  property  rights  arising 
from  or  affected  by  such  marriage.25 

§66.    Privilege — Penalties  for  Divulging  or  Publishing,  Etc. 

All  knowledge  of  any  facts  concerning  such  marriages  which 
shall  come  to  the  judge  of  probate  or  secretary  of  state,  or  to 
their  deputies  or  assistants,  or  to  the  witnesses  to  such  mar- 
riages, or  to  the  physician  endorsing  the  application,  under 
any  license  issued  pursuant  to  the  provisions  of  the  act  au- 
thorizing such  marriages  is  privileged. 

Any  violation  of  such  confidence  and  privilege  by  any  of 
sudh  persons  is  a  misdemeanor,  and  is  punishable  by  a  fine  of 
not  less  than  twenty-five  dollars  nor  more  than  one  hundred 
dollars,  and  the  costs  of  prosecution,  and  in  default  of  pay- 
ment of  the  fine  imposed,  by  imprisonment  in  the  county  jail 
not  more  than  three  months. 

24.     C.  L.  '15.  (11388);  Howell,  25.     C.  L.  '15,  (11389);  Howell, 

2nd.  Ed.  511449.  2nd.  Ed.  511450. 

< 

61 


§66  PROOF  OF  MARRIAGE 

The  giving  of  publicity  to  any  such  license,  or  to  any  mar- 
riage held  under  the  provisions  of  the  act,  is  also  a  misde- 
meanor, and  is  punishable  by  a  fine  or  imprisonment,  and,  in 
addition  thereto,  the  editor,  publisher  or  proprietor  of  any 
newspaper  or  publication  in  this  state,  giving  publicity  to  any 
such  license  or  marriage,  is  liable  in  an  action  of  libel  to  the 
parties  married  under  such  license. 

In  case  the  judge  of  probate  neglects  to  make  a  proper 
return  of  such  marriages,  he  is  liable  to  a  fine  not  exceeding 
fifty  dollars  in  addition  to  the  penalty  prescribed  by  the 
general  laws  of  this  state.26 

If  the  applicant  is  an  orphan  and  has  no  guardian  and  is 
under  marriageable  age,  a  guardian  must  be  appointed  for 
such  applicant  and  his  written  request  obtained  before  a 
license  can  be  issued  or  the  marriage  ceremony  performed.27 

26.  C.  L.  '15,  (11390) ;  Howell,  27.  People  v.  Schoonmaker, 
2nd.  Ed.  §11451.  119  Mich.  242,  77  N.  W.  934. 


62 


CHAPTER  VII. 
1'RESUMPTIONS. 

§67.  Presumptions  of  Validity  of  Marriage. 

§68.  Conflicting  Presumptions. 

§69.  Conflict  of  Laws. 

§70.  Indian  Customs. 

§71.  Incestuous  and  Polygamous  Marriages. 

§72.  Marriages — When   void. 

§73.  Marriage  More  than  a  Civil  Contract. 

§74.  Purpose  of  Statutory  Definition. 

§75.  Voidable  Marriages. 

§76.  Who  May  Annul  Voidable  Marriages. 

|77.  Who  May  Annul  Marriage  for  Fraud  or  Duress. 

§67.     Presumptions  of  Validity  of  Marriage. 

When  a  formal  ceremony  of  marriage,  followed  by  cohabita- 
tion, is  shown  between  persons  competent  to  enter  that  rela- 
tion, the  law  raises  a  presumption  that  the  marriage  is  valid 
and  that  the  person  performing  the  ceremony  was  legally 
authorized  to  perform  the  same,  and  this  presumption  can  be 
overcome  only  by  clear  and  convincing  evidence  to  the  con- 
irary.1 

It  is  held  in  the  State  of  Illinois  that  when  the  celebration 
<>f  .1  marriage  has  been  shown,  the  contract  of  marriage,  the 
•  •a parity  of  the  parties,  and  in  fact  everything  necessary  to  the 
validity  of  the  marriage  will  be  presumed,  in  the  absence  of 
proof  to  the  contrary.2  The  same  rule  prevails  in  Michigan, 
ami  it  seems  is  one  of  universal  application  in  this  country. 

In  the  case  of  People  v.  Schoon maker,  117  Mich.  190;  75 
X.  W.  439,  the  respondent  was  charged  with  statutory  rape. 
The  complaining  witness  was  under  the  age  of  consent  at  the 
time  the  offense  was  alleged  to  have  been  committed,  and  when 
she  was  called  to  the  stand  as  a  witness  she  was  interrogated 
by  respondent's  counsel  as  to  her  competency.  From  her 
examination  it  appeared  that  she  had  gone  through  the  form 
of  a  marriage  ceremony  with  the  respondent  before  the  judge 

1.  Meginson  v.  Meginson,  14  2.  Cartwright  v.  Gowan,  121 
L.  R.  A.  544.  111.  388. 

63 


§68  PRESUMPTIONS 

of  probate.  The  "prerequisite  conditions  required  by  Act  No. 
180,  Public  Acts  of  1897,  were  not  affirmatively  shown  by  the 
respondent  nor  testified  to  by  the  witness  and  it  did  not 
appear  that  the  statute  had  been  complied  with  in  that  regard. 
The  trial  court  held  that  this  fact  overcame  the  presumption 
of  the  validity  of  the  marriage  and  permitted  the  witness  to 
testify.  On  appeal,  the  supreme  court  held  that  this  view 
could  not  be  sustained,  and  that  the  presumption  arising  from 
the  fact  of  the  ceremony  of  marriage  before  an  officer  author- 
ized to  perform  it  is  in  favor  of  the  regularity  and  legality 
of  the  act,  citing  2  Wharton  on  Evidence,  §1297,  and  Bishop 
on  Marriage  and  Divorce,  §946.  The  precise  question  pre- 
sented was  whether  the  wife  was  a  competent  witness  to  the 
act  charged  as  occurring  before  the  marriage,  and  it  was  held 
that  she  was  not,  and  a  new  trial  was  ordered.3 

On  a  second  trial  it  was  shown  that  the  parties  went 
through  a  ceremony  of  marriage,  and  that  shell  ceremony  took 
Vlace  on  the  petition  of  Maud  Breen,  the  complaining  witness, 
without  any  consent  by  parent  or  guardian,  and  that  after  the 
ceremony  the  parties  made  arrangements  to  go  to  housekeep- 
ing but  never  in  fact  lived  together,  either  before  or  after  the 
complaining  witness  became  of  the  age  of  sixteen  years,  she 
being  sixteen  years  and  three  months  of  age  at  the  time  her 
testimony  on  the  second  trial  was  given.  This  trial  resulted 
in  another  conviction,  and  on  appeal  to  the  supreme  court  it 
was  held  by  that  court  that  the  marriage  was  void  an/I  the 
complaining  witness  competent  to  testify.4 

The  judgment  on  the  first  trial  seems  to  have  been  reversed 
and  a  new  trial  granted  because  the  legal  presumption  of  the 
legality  of  the  marriage  ceremony  was  not  overcome.  On  the 
second  trial  that  presumption  was  overcome  by  proof  that 
showed  that  the  marriage  was  void  and  not  merely  voidable. 

§68.     Conflicting  Presumptions. 

Cases  frequently  .arise  in  which  certain  disputable  presump- 
tions in  regard  to  the  marriage  relation  are  conflicting.  In 
such  cases  it  becomes  important  to  determine  which  presump- 
tion prevails  if  neither  is  aided  by  proof  of  cooperating  facts 
or  circumstances. 

The  weight  of  authority  seems  to  be  that  in  such  cases  the 
presumption  arising  from  the  later  act  must  prevail  over  that 

• 

3.  People  v.  Schoonmaker,  117  4.  People  v.  Schoonmaker,  119 
Mich.  195,  75  N.  W.  439.  Mich.  242,  -77  N.  W.  934. 

64 


roM  i.HJT  OF"  LAWS 

which  arises  from  facts  and  circumstances  which  occurred 
earlier.  Thus  where  the  presumption  of  marriage  arising  from 
I  In-  performance  of  a  ceremony  conflicts  with  a  presumption 
of«the  continued  life  of  a  former  spouse  of  one  of  the  partir-. 
if  neither  is  aided  by  facts  or  circumstances  cooperating  with 
it,  the  presumption  of  the  validity  of  the  marriage  will  prevail 
over  the  other.5  It  has  also  been  held  that  the  presumption  of 
life  will  yield  in  favor  of  the  presumption  of  innocence." 

Also,  in  an  action  to  settle  property  rights  depending  upon 
the  validity  of  a  marriage  by  a  man  who  had  a  wife  living  and 
from  whohi  he  had  been  separated  for  eight  years,  and  who  in 
the  meantime  had  married  again,  it  was  held  that  the  law 
will  presume  a  divorce  between  them,  and  that  the  man's 
second  marriage  was  valid  if  nothing  to  the  contrary  is 
shown.7 

Positive  evidence  of  non-assent  to  a  marriage  ceremony  that 
has  been  performed  raises  a  presumption  against  the  validity 
of  the  marriage  and  should  be  considered  by  courts  and 
juries.8 

While  reputation  may  be  considered  as  evidence  to  establish 
a  marriage,  and  is  very  important  when  the  fact  of  a  marriage 
is  in  doubt,  it  is  only  one  of  the  circumstances  from  which  a 
marriage,  legal  or  otherwise,  may  be  inferred.  When  a  mar- 
riage in  fact  is  made  out,  whether  by  formal  ceremony  or 
otherwise,  it  must  stand  though  all  the  community  say  and 
believe  it  to  be  illegal.  But  upon  doubtful  facts  the  court 
ougnt  to  presume  a  lawful  marriage  rather  than  a  notorious 
>f  immorality.9 

§69.     Conflict  of  Laws. 

When  the  validity  of  a  marriage  is  questioned,  it  alway> 
becomes  important  to  determine  whether  the  marriage  was 
valid  in  the  state  or  country  where  it  was  solemnized. 

Tt  is  a  principle  of  universal  law  that  a  marriage  valid  in  a 
country  where  it  occurred  is  valid  everywhere,  and  it  will  be 
held  valid  in  countries  where  the  parties  may  In-  domiciled, 

5.  Johnson  v.  Johnson,  114  111.  Iowa   228;    Harris    v.    Harris,    18 
611,  55  Am.  Rep.  883.  111.  App.  57. 

6.  Lockhart  v.  White,  18  Tex.  8.     Kopke   v.    People,   43   Mich. 
110.  41,  4  N.  W.  551. 

7.  Carroll    v.    Carroll,   20   Tex.  9.     Peet   v.   Peet,  52  Mich.   464- 
740;    Blanchard    v.    Lambert,    43  467,  18  N.  W.  220. 

65 


§70  PRESUMPTIONS 

even  though  it  would  have  been  invalid  by  the  laws  of  the 
subsequent  domicile  if  it  originally  had  been  celebrated  there.10 

§70.    Indian  Customs. 

Marriages  between  members  of  Indian  tribes  in  tribal  rela- 
tions valid  by  the  Indian  laws,  contracted  at  a  time  when 
there  was  no  act  of  Congress  on  the  subject,  are  recognized  by 
the  state  courts  as  valid.  Indians  in  tribal  relation  are  not 
subject  to  state  laws.11 

§71.    Incestuous  and  Polygamous  Marriages. 

It  seems,  however,  that  incestuous  and  polygamous  mar- 
riages, celebrated  in  countries  where  such  marriages  are  per- 
mitted, are  nevertheless  treated  as  invalid  here,  because  fhey 
are  condemned  by  the  common  voice  of,  civilized  nations,  which 
establishes  a  common  law  forbidding  them.12  The  same  rea- 
sons which  condemn  polygamous  and  incestuous  marriages 
sustain  marriages  by  mere  agreement  when  followed  by  co- 
habitation, and  the  same  common  law  protects  them. 

§72.    Marriages; — When  Void. 

Marriages  may  be  either  absolutely  void  or  only  voidable. 
When  between  persons  within  the  prohibited  degree  of  consan- 
guinity or  affinity  thqy  are  absolutely  void. 

All  marriages  solemnized  when  one  of  the  parties  was  insane 
or  an  idiot,  if  solemnized  in  this  state,  are  void,  but  the  issue 
of  any  such  marriages,  except  those  contracted  when  one  or 
both  of  the  parties  thereto  has  a  living  husband  or  wife,  is 
deemed  legitimate.13 

The  question  has  been  raised  in  this  state  as  to  whether  a 
bigamous  marriage,  entered  into  by  the  woman  in  good  faith, 
while  the  man  had  knowledge  that  he  had  a  lawful  \vife  living 
in  another  state,  becomes  valid  after  the  removal  of  the  impedi- 
ment by  the  death  of  the  first  wife  and  continued  cohabitation 
by  the  living  parties,  where  the  woman  never  learned  of  the 
existence  or  death  of  the  former  wife,  and  the  man  was  ignor- 
ant of  her  death.  The  circuit  court  held  the  marriage  valid, 

\ 

10.  Hutchins    v.    Kimmell,    31      Laws,  §180. 

Mich.   126.  13.     C.  L.  '15,  <11391) ;  Howell, 

11.  Kobogum,    v.     Mining    Co.  2nd.   Ed.    §11453;    In   Re   Fitzgib- 
76  Mich.   498,  43  N.  W.  602.  bon's   Estate,   162   Mich.    416,   127 

12.  Hutchins    v.    Kimmell,    31  N.  W.  313. 
Mich.  134;  Horton  on  Conflict  of 

66 


M.\I;I;IA<;I:    M<H;I:  THAN   A  rivn.  CONTRACT  §73 

and  upon  appeal  to  tin-  supreme  court  the  judgment  of  the 
circuit  court  was  allirmed  l>y  equal  division.14 

In  other  stages  there  seems  to  be  a  decided  conflict  of  author 
iiy  on  the  subject. 

It  would  seem  to  be  in  the  'interest  of  public  policy  and.  good 
morals  that  when  a  woman  enters  into  the  marriage  relation 
in  good  faith,  bearing  all  of  its  burdens,  and,  assuming  all  of 
the  duties  of  a  wife  in  that  relation,  becomes  the  mother  of 
children,*  honestly  believing  them  to  be  the  offspring  of  a 
lawful  marriage,  and  such  relations  continue  in  good  faith 
after  the  Impediment  is  removed,  she  should  not  be  character- 
ised or  placed  in  the  same  category  as  a  harlot,  and  as  though 
she  had  knowingly  entered  into  meretricious  relations.  No 
one  can  reasonably  urge,  in  furtherance  of  good  morals,  public 
policy,  or  the  sacredness  of  the  marriage  relation,  that  children 
born  under  such  circumstances  should  be  characterized  as 
illegitimate.  It  would  be  a  cruel  law  that  would  accomplish 
such  results,  and  it  is  to  be  hoped  that  such  will  never  be  the 
law  of  this  country. 

§73.    Marriage  More  than  a  Civil  Contract. 

While  it  is  declared  by  statute  in  this  state,  and  in  many 
others,  that  "marriage  so  far  as  its  validity  is  concerned  is  a 
civil  contract,  to  which  the  consent  of  parties  capable  in  law 
of  contracting  is  essential".15  still  it  involves  something  more 
than  a  mere  contract,  for  when  once  formed  a  relation  is 
•  reated  between  the  parties  which  they  cannot  change,  the 
rights  and  obligations  of  which  depend  not  upon  their  agree- 
ment. l»ni  upon  the  law,  written  or  unwritten.18  In  Michigan 
the  conn-act  of  marriage  will  not  be  presumed  when  such 
l-re<nm|»tion  would  do  violence  to  facts  fully 'covered  by  the 
proofs,  lint  iti  case  of  a  formal  marriage,  where  the  woman 
already  had  a  living  husband  against  whom  she  had  applied 
for  a  divorce,  which  she  obtained  subsequent  to  the  second 
marriage,  if  the  parties  agree,  after  the  granting  of  the  divorce/ 
that  they  will  live  and  cohabit  together  as  husband  and 
wife,  and"  they  continue  to  do  so  for  any  considerable  period. 
such  agreement  and  subsequent  cohabitation  constitute  a  legal 
and  valid  marriage.17  Tn  such  case,  while  the  first  marriage 

'14.     In   Re   Fitzgibbon's  Estate,  190,  L.  Ed.  654. 
162  Mich.   416.  17.     Williams     v.    Kilburn,     88 

15.  C.  L.  '15.  (11362);  Howell,  Mich.  279.  50  N.  W.  293;  Flanagan 
2nd.  Ed.  511424.  v.    Flanagan,    116    Mich.    185,    74 

16.  Maynard  v.  Hill,  125  U.  S.  N.  W.  460. 

67 


§74  PRESUMPTIONS 

was  void  and  cohabitation  unlawful  before  the  decree  of 
divorce  was  granted,  after  it  was  granted  the  parties  became 
competent  to  enter  into  a  new  marriage  contract.18 

In  the  State  of  Nebraska  the  only  thing  essential  to  a  valid 
marriage  is  the  consent  of  parties  competent  to  contract  to 
enter  into  the  relation  of  husband  and  wife.  If  the  parties 
live  together,  intending  to  sustain  toward  each  other  the  rela- 
tion of  husband  and  wife,  they  are,  in  the  absence  of  any  legal 
impediment  to  that  relationship,  legally  married.19  And  even 
.where  the  parties  originally  came  together  under  a  contract 
of  marriage,  void  because  forbidden  by  statute,  when  the 
statutory  impediment  is  removed  they  are  at  liberty  to.  enter 
into  a  new  contract  of  marriage,  and  such  marriage  may  be 
shown  either  by  their  express  agreement  to  sustain  toward 
each  other  the  relation  of  husband  and  wife,  or  by  proof  of 
acts  of  recognition,  continued  matrimonial  cohabitation,  and 
general  reputation.20 

If  the  cohabitating  parties  desire  and  consent  to  assume 
matrimonial  relations,  and  know  of  an  impediment,  they  may 
be  presumed  to  have  consented  to  do  so  in  a  reasonable  time 
after  the  impediment  is  removed,  if  cohabitation  continues  for 
any  considerable  period  of  time.21 

§74.    Purpose  of  Statutory  Definition. 

The  statute  of  Nebraska  contains  substantially  the  same 
provisions  as  the  statute  of  Michigan  that  "in  law,  marriage 
is  considered  a  civil  contract  to  which  the  consent  of  parties 
capable  of  contracting  is  essential." 

In  the  case  of  the  University  of  Michigan  v.  McGueldn,  the 
Supreme  Court  of  Nebraska  say: — "The  main  purpose  of  this 
definition  is,  we  think,  to  negative  the  idea  that  marriage  is 
an  ecclesiastical  sacrament,  or  that  in  the  eye  of  the  law  it  is 
controlled  by  the  mandates  or  dogmas,  or  subject  to  the  observ- 
ance of  the  rituals  or  regulations,  of  any  particular  church  or 
sect.  That  it  is  not, a  contract,  resembling  in  any  but  the 

18.  In   re   Wells'    Estate,    194      v.  McGuckin,  62   Neb.   489,  57  L. 
N.  Y.  548.  R.  A.  917,  87  N.  W.  180. 

19.  Eaton   v.   Eaton,    66    Neb.  21.     Camden    v.     Belgrade,     75 
676,    60    L.   R.   A.    608,    92    N.   W.  Me.   126;   Northfield  v.   Plymouth, 
995.  20    Vt.    582;    Blanchard    v.    Lam- 

20.  Fenton   v.    Reed,    4   Johns.  bert,    43   Iowa  228,    22   Am.   Rep< 
52;     Blanchard    v.    Lambert,    43  245. 

Iowa  229;  University  of  Michigan 

68 


WHO    MAY    ANXn,    VOIUAMI.K    M  AltlM  A(JKS.  §76 

slightest  decree.  except  as  to  the  element  of  consent,  any  other 
contract  with  which  the  courts  have  to  deal,  is  apparent  upon 
ii  moment's  reflection.  This  was  pointed  out  by  the  late  Mr. 
Justice  Field,  with  his  usual  clearness  of  expression  and 
wealth  of  illustration,  in  Maynard  v.  Hill,  125  U.  S.  190;  31 
L.  Ed.  C45.  What  persons  establish  by  entering  into  mairi 
mony  is  not  a  contractual  relation,  but  a  social  status,  and 
the  only  essential  features  of  the  transactions  are  that  the 
participants  are  of  legal  capacity  to  assume  that  relation,  and 
freely  consent  to  do  so." 

The  statute  of  Michigan  declares  marriage  to  be  a  civil 
contract  for  a  certain  purpose,  that  is,  "so  far  as  its  validity 
is  concerned,"  but  it  is  only  when  the  actual  fact  of  marriage 
is  accomplished,  by  persons  against  both  of  whom  no  legal 
impediment  exists,  that  the  statute  steps  in  and  declares  what 
their  rights,  obligations  and  duties  are,  and  places  such  rights. 
obligations,  and  duties  beyond  the  power  of  the  parlies  1o 
change  or  modify. 

But  there  are  certain  marriage  contracts  which  are  not 
absolutely  void,  and  which  may  be  abrogated,  or  the  status  of 
the  parties  be  changed,  by  the  act  of  one  or  both  of  the  con- 
tracting parties. 

The  statute  of  Michigan  recognizes  certain  marriages  as 
voidable  and  not  absolutely  void. 

§75.    Voidable  Marriages. 

Marriages  solemnized  when  either  of  the  parties  is  under 
the  legal  age  of  consent  are  not  absolutely  void,  but  only 
voidable.  If  the  parties  separate  during  such  non-age  and  do 
not  cohabit  together  afterward,  "the  marriage  is  deemed  void, 
\\  i  i  hout  any  decree  of  divorce  or  other  legal  process.22  In 
such  case  it  seems  that  the  marriage  contract  is  annulled  and 
the  marriage  relation  dissolved  by  the  acts  of  the  parties. 

§76.    Who  May  Annul  Voidable  Marriages. 

At  common  law  the  right  to  annul  the  marriage,  where  one 
of  the  parties  was  under  the  age  of  consent,  continued  with 
one  party  as  long  as  it  did  with  the  other,28  but  the  common 
law  rule  has  been  abrogated  in  this 


22.  C.  L.  '16,  (11393)  ;  Howell,  24.    People  v.   Slack,   15   Mich. 
2nd.  Ed.  §11454.  193;   C.  L.  '15,    (11422);    He-well, 

23.  Reeves'      Domestic      Rela-  2nd.   Ed.  §11483. 
linns.    §200. 

6» 


§77 


PRESUMPTIONS 


In  case  the  consent  of  one  of  the  parties  to  the  marriage  was 
obtained  by  force  or  fraud,  the  marriage  is  only  voidable  and 
not  absolutely  void.23  In  case  of  a  marriage  while  one  of  the 
parties  is  under  the  legal  age  of  consent,  such  marriage  is 
voidable  at  the  option  of  the  minor.  During  the  existence  of 
the  legal  impediment  the  parties  may  separate  by  mutual 
agreement,  and  if  they  do  so,  and  do  not  afterwards  cohabit 
as  husband  and  wife,  the  marriage  will  be  void  without  a 
decree  of  divorce  or  other  legal  proceedings.  In  other  words, 
in  such  case  the  marriage  may  be  annulled  by  the  mutual  con- 
sent of  both,  or  at  the  election  of  the  party  under  age,  but  not 
at  the  election  of  the  party  of  competent  age.2G  But  such 
marriage  will  be  void  if  the  party  under  age  withdraws  and 
refuses  to  cohabit.27 

§77.    Who  May  Annul  Marriage  for  Fraud  or  Duress. 

Where  the  consent  of  one  of  the  parties  was  secured  by 
fraud  the  marriage  can  be  annulled  only  on  the  application  of 
the  party  defrauded.  And  where  consent  to  a  marriage  is 
obtained  by  duress  it  can  be  nullified  only  on  the  application 
of  the  party  upon  whom  the  duress  operated.28 


25.  C.  L.  '15,   (11393)  ;  Howell, 
2nd.  Ed.  §11454. 

26.  C.  L.  '15,   (11422) ;  Howell, 
2nd.  Ed.  §11483;  People  v.  Slack, 
15  Mich.  201;  but  such  marriage 
will  be   void   if  the   party  under 
age  withdraws  and  refuses  to  co- 
habit, People  v.  Bennett,  39  Mich. 
209. 

27.  People   v.    Slack,    15  Mich: 
193;    People  v.  Schoonmaker,  119 


Mich.  245,  77  N.  W.  246. 

28.  Smith  v.  Smith,'  51  Mich. 
607,  17  N.  W.  76;  Sissung  v. 
Sissung,  65  Mich.  168,  31  N.  W. 
770;  Gillett  v.  Gillett,  78  Mich. 
184,  43  N.  W.  110;  Nadra  v. 
Nadra,  79  Mich.  591,  44  N.  W. 
1046;  Harrison  v.  Harrison,  94 
Mich.  561,  54  N.  W.  275,  34  Am. 
St.  Rep.  364. 


70 


.     PART    TWO 

RIGHTS,   DUTIES   AND   OBLIGATIONS   OF   HI  SHAM) 

AND  WIFE 


PAKT  TWO— RIGHTS,  DUTIES  AND  OBLIGATIONS  OF 
HUSBAND  AND  WIFE 

Chapter  VIII.  Statutory  Provisions.    • 

Chapter      IX.  Property  Rights  of  Husband  and  Wife. 

Chapter        X.  Curtesy,  Dower  and  Assignments. 

Chapter      XI.  Barring  Dower  and  Election. 

Chapter    XII.  Rights,  Duties  and  Obligations  of  Dowress. 

Chapter  XIII.  Barring  Dower  of  Insane  Persons  and  Minors. 


CHAPTER  VIII. 

STATUTORY  PROVISIONS. 

§78.  Introduction. 

§79.  Mutual   Property  Rights  of  Husband .  and   Wife. 

§80.  Married  Women's  Act. 

§81.  Trustee  for  Married  Woman  May  Convey  to  Her. 

§82.  Actions  by  and  against  Married  Women. 

§83.  Husband   not   Liable   for   Wife's    Contract   in   Relation   to    her 

Separate  Property. 

§84.  Antenuptial  Contracts. 

§85.  Wife  May  Insure  Life   of  Husband. 

§86.  Right  of  Married  Woman  to  Earnings. 

§78.    Introduction. 

By  the  common  law  of  England  husband  and  wife  were  but 
one  person  in  general  legal  contemplation.1 

As  long  as  the  common  law  rule  regarding  the  unity  of  the 
marriage  relation  existed,  unmodified  by  statute,  the  mutual 
rights,  duties  and  obligations  of  husband  and  wife  were  deter- 
mined by  the  common  law.  The  rights  appeared  to  be  all  with 
the  strong — the  man ;  the  duties  to  the  weak — the  woman. 

The  legal  relation  of  husband  and  wife,  both  in  this  count rv 
and  in  England,  has  been  practically  revolutionized  by  modern 
legislative  enactment.  Great  changes  have  been  made  in 
England,  in  the  colonies  of  the  British  Empire,  and  in  all  of 
the  states  of  the  Union,  not  only  iu  regard  to  the  unity  of  the 
marriage  relation,  but  also  the  right  of  a  married  woman  to 
acquire,  enjoy  and  dispose  of  her  separate  property  the  same 
as  though  she  were  unmarried.  In  England  the  married 
women's  act  absolutely  secures  to  a  wife,  her  separate  property. 
The  different  provinces  of  Canada  have  different  rules  and 
regulations  on  the  subject,  and  in  the  United  States  there  is 
no  state  where  all  of  the  rigorous  rules  of  the  common  law  as 
to  the  wife's  property  are  in  force.  Many  of  the  common  law 
disabilities  of  a  married  woman  have  been  removed,  which 
formerly  existed  by  unity  of  the  marriage  relation  or,  as  is 
sometimes  said,  merger  of  identity.  Great  changes  have  also 

1.     Snyder  v.  People,  26  Mich.      106,  12  Am.  R.  302. 

73 


§79  STATUTORY   PROVISIONS 

been  made  with  reference  to  the  wife's  earnings,  her  contrac- 
tural  powers,  and  the  general  control  of  her  separate  property. 
So  great  is  the  variance  of  these  statutes  in  the  different  juris- 
dictions that  considerable  confusion  in  our  laws  is  produced. 
The  object  and  scope  of  this  work  will  not  permit  or  require 
a  general  discussion  of  the  common  law  relating  to  the  mutual 
rights,  duties  and  obligations  of  husband  and  wife.  This 
chapter  will  necessarily  be  confined,  to  a  considerable  extent, 
to  the  general  provisions  of  the  Michigan  legislation  on  that 
subject  with  references  to  the  common  law  rules  which  still 
exist  unmodified  by  statute. 

§79.     Mutual  Property  Rights  of  I^usband  and  Wifp. 

At  common  law  all  the  wife's  property  and  choses  in  action, 
if  reduced  to  possession  during  the  coverture,  belonged  to  the 
husband,  but  on  his  death,  before  recovery  by  him,  choses  in 
action  belonging  to  the  wife  before  marriage  survived  to  her.2 

This  common  law  rule  has  been  changed  in  Michigan  by 
both  constitutional  and  statutory  provisions.  The  present 
constitution  provides  that  "the  real  and  personal  estate  of 
every  woman,  acquired  before  marriage,  and  all  property  to 
which  she  may  afterwards  become  entitled  by  gift,  grant, 
inheritance  or  devise,  shall  be  and  remain  the  estate  and 
property  of  such  woman,  and  shall  not  be  liable  for  the  debts, 
obligations  or  engagements  of  her  husband,  and  may  be  de- 
vised or  bequeathed  by  her  as  if  she  were  unmarried."" 

The  same  provision  appears  in  the  constitution  of  1850,  with 
the  exception  that  the  word  "female,"  as  used  in  the  constitu- 
tion of  1850,  is  changed  to  "woman"  in  the  constitution  of 
1908.4 

§80.    Married  Women's  Act. 

In  1855,  pursuant  to  the  provisions  of  the  constitution  of 
1850,  the  legislature  passed  an  act  entitled :  "An  Act  Eelative 
to  the  Eights  of  Married  Women,"  providing  that  "the  real  and 
personal  estate  of  every  female  acquired  before  marriage,  an,d 
all  property,  real  and  personal,  to  which  she  may  afterwards 
become  entitled,  by  gift,  grant,  inheritance,  devise,  or  in  any 
other  mariner,  shall  be  and  remain  the  estate  and  property  of 

such  female,  and  shall  not  be  liable  for^the  debts,  obligations 

\ 

2.  Berger   v.   Jacobs,   21  Mich.       Sec.  18. 

215.  4.     Const.   1850,  Art.  XVI,   Sec. 

3.  Const.     1908,    Article    XVI,      5. 

74 


A.    ll.ixs     r.V     AND    A..A1NST    .MARRIED    WOMEN  §82 

and  engagement  of  her  husband,  ;m<l  may  be  contra  fin  I.  sold, 
transferred,  mortgaged,  conveyed,  devised  or  bequeathed  by 
her  in  ihe  same  manner  and  with  the  like  effect  as  if  sin-  \\  ere 
unmarried." 

This  statute  \vas  the  lirst  provision  of  law  in  ..Michigan 
whieh  in  terms  gave  to  a  married  woman  complete  and  inde- 
pendent control  over  her  own  property." 

§81.     Trustee  for  Married  Woman  May  Convey  to  Her. 

Seci  inn  J  of  the  act  of  1 S ."">."»  provides  thai  "Any  person  wiio 
may  hold.  <>r  who  may  hereafter  hold  as  trustee  for  any  mar- 
ried woman  any  real  or  personal  estate  or  other  property, 
under  any  deed  of  conveyance  or  otherwise,  may  convey  to 
such  num-ieii  woman,  by  deed  or  otherwise,  all  or  any  portion 
of  such  properly,  or  the  vents,  issues  and  profits  thereof,  for 
her  sole  and  separate  use  and  benefit."7 

§82.    Actions  by  and  against  Married  Women. 

The  third  section  of  the  act  of  1855  provides  that  "actions 
may  be  brought  by  and  against  a  married  woman  in  relation  to 
her  sole  property  in  the  same  manner  as  if  she  were  uumar 
i-ied  ;  and  in  cases  where  the  property  of  the  husband  cannot 
•  Id,  mortgaged  or  otherwise  encumbered,  without  the  con- 
sent of  his  wife,  to  be  given  in  the  manner  prescribed  by  law. 
or  where  his  property  is  exempted  by  law  from  sale  on  execu- 
tion or  other  final  process  issued  from  any  court  against  him. 
his  wife  may  bring  an  action  in  her  own  name  with  the  like 
effect  as  in  cases  of  actions  in  relation  to  her  sole  property  as 
aforesaid,"8 

5.  Act  168,  Pub.  Acts  1855;  C.  separate      interest      should       be 
L.  '15.  (11485);  Howell,  2nd.  Ed.,  fought    by    her    alone,     and     not 
§11545.  jointly   with   her  husband,  M.   C. 

6.  Ransom     v.     Ransom,      30  R.   R.   Co.   v.   Coleman,   28  Mich. 
Mich.   328.  440. 

7.  Act.  No.   168,    P.    A.    1855,  In    an    action    against    a    mar- 
Sec.  2;  C.  L.  '15,  (11486);  Howell,  ried  woman  for  slander,  her  hus- 
2nd.      Ed.,     §11546;     Burdeno    v.  band    cannot   be   made   liable   for 
Amperse,    14   Mich.    97;    Tillman  her  tort,  so  there  can  be  no  rea- 
v.  Shackleton,  15  Mich.  453.  son  for  joining  him  as  a  defend- . 

8.  C.  L.  '15,    (12356);   Howell,  ant,  yet  the  statutes  seem  to  as- 
2nd.     Ed.,     §11547;      Wilson     v.  sume   that   he   is   still   a    proper 
Coolidge.    42   Mich.   112,  3   N.  W.  party,   and,   whether  a  necessary 
285;    Hunt    v.    Eaton,    55    Mich.  one  or  not,  he  is  at  least  not  an 
369,  21  N.  W.  429;   King  v.  Mer-  improper  party— Burt  v.  McBain, 
ritt,  67  Mich.   194,  34   N.  W.  689.  29  Mich.  260. 

Actions  in  relation  to  the  wife's 

75 


§83  STATUTORY    PROVISIONS 

§83.    Husband  not  Liable  for  Wife's  Contract  in  Relation  to  her 
Separate  Property. 

Section  Four  of  the  Married  Women's  Act  of  1855  provides 
that  "the  husband  of  any  married  woman  shall  not  be  liable- 
to  be  sued  upon  any  contract  made  by  such  married  woman  in 
relation  to  her  sole  property,  and  the  wife  shall  be  liable  to  be 
sued  upon  any  .contract  or  engagement  made  by  her  in  cases 
where  the  husband  is  not  in  law  liable,  or  where  he  refuses  to 
perform  such  contract  or  engagement,  and  in  any  case  herein 
authorized,  the  cause  of  action  shall  be  deemed  to  have  accrued 
from  and  after  the  passage  of  this  act."9 

§84.    Antenuptial  Contracts. 

The  act  of  1855  also  provides  that  "all  contracts  made  be- 
tween persons  in  contemplation  of  marriage  shall  remain  in 
full  force  after  marriage  takes  place."10 

The  fact  that  another  statute  provides  a  method  of  barring, 
dower  by  jointure  does  not  deprive  the  intended  wife,  who  is 
a  party  to  an  antenuptial  contract,  of  the  power  to  bar  her 
dower  or  other  statutory  rights,  by  any  other  valid  form  of 
antenuptial  contracts.11 

While  the  law  prescribes  the  rights  of  husband  and  wife  in 

9.     Act   No.    168,    P.     A.     1855,  239;  Commercial  Bank  v.  Newton, 

Sec.  4;  C.  L.  '15,  (11487);  Howell,  117  Mich.  433;   75  N.  W.  934. 

2nd.  Ed.,  §11548.  The  fact  that  goods  were  charg- 

This  statute  abrogates  the  com-  ed    upon    the    plaintiff's    book    to 

mon  law  making  the  husband  lia-  the    wife    would    not    necessarily 

ble  for  his  wife's  antenuptial  con-  estop  him  to  claim  that  the  goods 

tracts — Smith      v.      Martin,      124  were  sold  upon  the  credit  of  the 

Mich.  34,  82  N.  W.  662.  husband.     Larson    v.    Jensen,    53 

It  is  not  going  out  of  the  way  Mich.  427,  19  N.  W.  130;  Leonard 

to  regard  a  husband  who  deserts  v.  Stowe,  166  Mich.  681,  132  N.  W. 

his  family  and  does  nothing  for  681;   Taylor-Woolfenden  v.  Atkin- 

their  support  as  refusing  to  per-  son,  127  Mich.  633,  87  N.  W.  84. 

form     his     wife's     contract      for  10.    Act  No.  168,  Sec.  5;   P.  A. 

necessaries.     Carstens   v.    Hansel-  1855,  C.  L.  '15,    (11488) ;   Howell, 

man,  61  Mich.  426,  28  N.  W.  159.  2nd.  Ed.,  §11549. 

But  it  is  not  necessary  to  show,  11.     Hockenberry    v.     Donovan, 

in    order   to    maintain   an   action  170   Mich.   379,    136   N.    W.    389; 

against    a    married     woman     for  Earth  v.  Lines,  118  111.  374,  7  N. 

family  necessaries  which  she  has  E.  679,  59  Am.  R.  374;   Desnoyer 

bought    and    agreed    to    pay    for,  v    Jordan,  27  Minn.  29$  7  N.  W. 

that   the   husband   refused   to   do  140. 

so.     Meads   v.   Martin,    84    Mich.  The  mutual   covenants    of    the 

306,  47  N.  W.  583;   Hirschfleld  v.  parties   to   an    antenuptial   agree- 

Waldron,  83  Mich.  116,  47  N.  W.  inent  to  waive  their  rights  in  the 

76 


KI«.  I  IT    o|-'    MAKUIKI*    WiiMKN    To    j:.\KM.\t.>  §86 

I 

the  property  of  each  other,  they  may  nevertheless  determine 
for  themselves,  by  antenuptial  contracts,  what  rights  they 
respectively  may  have  in  their  own  and  each  other's  property 
»lui-ing  the  marriage,  and  what  shall  become  of  such  property 
afterwards.  Such  contracts  are  not  against  public  policy,  and 
when  executed  by  competent  parties  without  fraud  or  duiv^s. 
and  with  full  knowledge  of  all  material  facts,  will  be  enforced 
by  the  courts.12 

§85.    Wife  May  Insure  Life  of  Husband. 

The  statute  of  Michigan  authorizes  any  married  woman  to 
insure  the  life  of  her  husband  or  any  other  person  for  her  sole 
use  in  any  life  insurance  company  of  any  nature  whatever, 
located  in  any  of  the  United  States  or  in  Great  Britain,  for 
any  definite  period,  or  for  the  term  of  his  natural  life;  and 
in  case  sin*  survives  her  husband  or  such  other  person  insured 
in^her  behalf,  the  amount  of  such  policy  due  ami  payable  is 
payable  to  her  to  and  for  her  own  use,  free  from  the  claims 
of  the  representatives  of  her  husband  or  other  person  insured. 
or  of  any  of  his  creditors,  but  such  exemption  will  not  apply 
where  the  amount  of  premium  annually  paid  exceeds  the  SIMM 
of  three  hundred  dollars.13  Such  insurance  policy  may  con- 
tain a  provision  tha^  in  case  she  dies  first  the  insurance  shall 
be  paid  to  their  children  or  to  their  guardian  if  under  age.14 
And  in  case  of  the  death  of  such  wife  before  the  death  of  her 
husband  or  such  other  person  insured,  the  amount  of  the  policy 
may  be  disposed  of  by  her  last  will  and  testament.15 

§86.    Right  of  Married  Woman  to  Earnings. 

At  common  law,  and  until  quite  recently  in  Michigan,  the 
earnings  of  a  married  woman  belonged  to  her  husband  unless 
he  had  emancipated  her.  The  wife's  time,  services  and  earn- 
ings belonged  to  the  husband.16 

property  of  each  other,  and  the  13.    C.  L.  '15,  (11489) ;  Howell, 

release  of  such  rights,  constitute  2n'd.  Ed.  §11550. 

a  good   consideration   to   support  14.    Insurance    Co.    v.    Wayne 

the  agreement,  and  the  marriage  County   Savings   Bank,    68   Mich, 

.of  the  parties  is  of  itself  a  s^uffl-  116,   39   N.  W.   853. 

clent  consideration.  Kroll  v.  Kroll,  15.     C.  L.  '15,   (11490);  Howell. 

219  111.  105,  4  Am.  &  Eng.  Ann.  2nd.   Ed.,    811551;    Insurance  Co. 

Cases  801,  76  N.  E.  63.  v.  Wayne  County  Savings  Bank, 

12.     Hockenberry    v.    Donovan,  68  Mich.   116. 

170    Mich.    370,    136    N.    W.    389;  16.     Glover  v.  Alcott,  11  Mich. 

Kroll  v.  Kroll.  4  Am.  &  Eng.  470;  Tong  v.  Marvin,  15  Mich.  60. 
Ann.  Cases  801. 

77 


STATUTORY   PROVISIONS 


Iii  1911,  however,  the  legislature  enacted  that  "each  and 
every  married  woman  in  the  State  of  Michigan  shall  be  abso- 
lutely entitled  to  have,  hold,  own,  retain  and  enjoy,  any  and 
all  earnings  acquired  by  any  such  married  woman  as  the 
result  of  her  personal  effort;  and  to  sell  or  otherwise  dispose 
of  any  and-  all  such  earnings,  and  to  make  contracts  in  relation 
thereto  to  the  same  extent  that  any  such  married  woman  could 
have  or  do  if  unmarried."17 

This  act  does  not  in  terms  permit  a  married  woman  to  leave 
her  husband  without  cause  and  engage  her  services  to  some 
other  person. 


17.  Mich.  C.  L.  1915,  (11478); 
Howell,  2nd.  Ed.,  §11552.  Dam- 
ages for  the  loss  of  services  of 
plaintiff's  wife  arising  from  per- 
sonal injuries  suffered  by  her 
caused  by  the  negligence  of  de- 
fendant's servant,  are  recoverable 
in  an  action  by  the  husband, 
notwithstanding  the  provisions  of 
Act  No.  196,  P.  A.  1911,  giving 
the  wife  'the  right  to  her  earn- 
ings and  services.  That  statute 
contemplates  and  means  that  all 


earnings  acquired,  or  services  per- 
formed as  a  result  of  her  per- 
sonal effort,  in  any  separate  busi- 
ness carried  on  by  her  in  her  own 
behalf,  or  any  services  performed 
by  her  for  others  than  her  hus- 
band, belonged  to  her.  Her  labor, 
companionship,  society  and  as- 
vsistance  in  the  discharge  of  her 
family  and  household  duties  and 
obligations  still  belong  to  the 
husband.  Gregory  v.  Oakland 
Motor  Car  Co.,  181  Mich.  101. 


78 


ix. 

PROPERTY  RIGHTS  OF  HI  SP.AM)  AM>  WIFE. 

§87.  Mutual  Property  Rights. 

§88.  Deed  of  Land  Owned  by  Wife. 

§89.  Land  Held  Jointly  by  Husband  and  Wife. 

§90.  Same  Subject  Continued. 

§91.  Doctrine  of  Survivorship  Does  not  Apply  to  Personal  Property. 

§92.  Same  Subject  Continued. 

§93.  Effect  of  Divorce  on  Title  to  Land  Held  by  Husband  and  Wife. 

§87.    Mutual  Property  Rights. 

There  is  no  legal  presumption  that  a  wife  has  no  separate 
property.1  Under  the  married  woman's  act  of  18r»r>  the  wife's 
property  is  not  simply  to  be  and  remain  hers  during  her  life 
time,  but  the  husband's  common  law  interest  is  excluded  ali<> 
gether  even  after  her  death,  and  the  husband  has  no  right  of 
control  over  his  wife's  property  during  coverture." 

Damages  recovered  by  a  wife  for  injuries  in  her  pcix>u  and 
for  pain  and  suffering  result  ing  from  an  assault  and  battery 
committed  upon  herself  belong  to  h^r  as  a  part  of  her  separate 
properly. 

A  wife  may  acquire  property  redeemed  by  judgment  credi- 
tors from  execution  sale  against  her  husband,  and  in  such  case 
the  property  so  acquired  by  her  will  be  treated  as  her  separate 
property  and  the  husband  will  have  no  interest  therein.1 

A  husband  cannot  encumber  his  wife's  property  without  her 
consent:  and  the  mere  fact  that  he  has  given  a  chattel  mort- 
gage on  personal  property  belonging  to  her  does  not  tend  to 
show  that  he"  owns  it,  if  there  is  no  evidence  of  the  wife's 
consent.5 

§88.    Deed  of  Land  Owned  by  Wife. 

Prior  to  the  passage  of  the  married  woman's  act  of  Is.Vi 

1.  Ross  v.  Ross,  47  Mich.  185,    ,  215. 

10  N.  W.  193.  4.     Taylor     v.     Boardman,     24 

2.  Tong    v.    Marvin,    15    Mich.      Mich.   287. 

60;  White  v.  Zane,  10  Mich.  333;  5.     Harvey      v.     Galloway,     48 

Insurance    Co.*  v.    Montague,    38  Mich.    531,    12   N.   W.    689;    Gavi- 

Mich.  548.  gan  v.  Scott,  51  Mich.  373.  16  N. 

3.  Berger  v.   Jacobs,   21   Mich.  W.  769. 

79 


§89  PROPERTY  RIGHTS 

the  sole  deed  of  a  married  woman  was  void.6  This  rule  of  the 
common  law  was  changed  by  the  act  of  1855,  and  since  that 
act  took  effect  a  married  woman  may  convey  her  land  alone 
by  deed  executed  and  acknowledged  by  her  in  the  same  manner 
and  with  the  like  effect  as  if  she  were  unmarried.7  And  a  wife 
may  mortgage  her  sole  property  to  secure  her  husband's  debts.8 

A  husband  and  wife  may  convey  directly  to  each  other  with- 
out the  intervention  of  a  trustee  or  third  person,  as  was 
required  prior  to  the  act  of  1855.9 

A  wife  who  contributes  of  her  own  means  to  the  purchase  of 
land  by  her  husband,  who  takes  a  deed  in  his  own  name — she 
not  insisting  upon  any  agreement  for  repayment  or  the  con- 
veyance of  any  interest  in  the  land  to  her — will  be  presumed 
conclusively,  after  her  husband's  death,  to  .have  intended  the 
amount  of  her  contribution  as  a  gift  to  her  husband.10 

§89.    Land  Held  Jointly  by  Husband  and  Wife. 

The  statute  provides  "that  all  grants  and  devises,  of  land 
made  to  two  or  more  persons,  except  as  provided  in  the  fol- 
lowing section,  shall  be  construed  to  create  estates  in  common, 
and  not  in  joint  'tenancy,  unless  expressly  declared  to  be  in 
joint  tenancy."  "  One  of  the  exceptions  mentioned  in  the 
following  section  is  a  grant  or  devise  to  husband  and  wife.12 

Whatever  would  defeat  a  husband's  title  under  a  grant  made 
to  himself  and  his  wife  jointly,  would  defeat  hers  also,  as  they 
take  by  entireties.13  Where  a  grant  or  devise  of  land  is  made 
in  fee  to  husband  and  wife,  on  the  death  of  one  of  them  the 
whole  title  inures  to  the  survivor.  Nothing  in  our  constitution 
or  statutes  relating  to  the  rights  of  married  women  would 
convert  such  an  estate  into  a  tenancy  in  common.14  Where 
land  is  conveyed  or  devised  to  husband  and  wife,  they  hold 
neither  as  tenants  in  common  nor  as  ordinary  joint  tenants. 
The  survivor  takes  the  whole.  During  the  lives  of  both, 

6.  Goff  v.  Thompson,  Har.  Ch.  11.     C.  L.  '15,   (11562);  Howell, 
60.  2nd.  Ed.,  §10667. 

7.  Fair   v.   Sherman,  11  Mich.  12..     C.  L.  '15,  (11563);   Howell, 
33;  Watson  v.  Thurber,  11  Mich.  2nd.  Ed.,  §10667. 

457.  13.     Manwaring    v.    Powell,    40 

8.  Watson  v.  Thurber,  11  Mich.      Mich.  371. 

469.  14.     Fisher  v.  Provin,  25  Mich. 

9.  Burdeno     v.     Amperse,     14  347;    Insurance   Co.    v.    Resh,    40 
Mich.  91;  Ransom  v.  Ransom,  30  Mich.   241;    Jacobs   v.    Miller,    50 
Mich.  328.  Mich.   119,   15  N.  W.    42;    Bassett 

10.  Campbell    v.    Campbell,    21      v.    Budlong,   77   Mich.   338,   43    N. 
Mich.  438.  W.  984. 

80 


LAND   HELD   JOINTLY  §90 

neither  has  an  absolute  inheritable  interest.  Neither  can  be 
said  to  have  an  undivided  half,  nor  can  either,  without  joining 
in  a  conveyance  with  the  other,  sell  or  incumber  the  same  or 
his  or  her  interest  therein.15 

A  deed  executed  to  a  man  and  woman  who  at  the  time  of  the 
execution  and  delivery  of  the  deed  are  in  fact  husband  and 
wife,  creates  an  estate  which,  on  the  death  of  one  of  the 
grantees,  will  pass  to  the  survivor,  and  the  fact  of  the  relation- 
ship may  be  shown  by  parol  testimony.18 

§90.    Same  Subject  Continued. 

This  species  of  tenancy  grows  out  of  the  unity  of  husband 
and  wife,  and  is  unlike  that  of  joint  tenants,  who  are  each 
seized  of  an  undivided  moiety.  The  husband  and  wife  are  each 
seized  of  the  whole,  and  not  of  an  undivided  moiety.17 

The  doctrine  of  estates  by  entireties  has  frequently  been 
combated  in  this  state,  and  the  case  of  Dowling  v.  Salliott, 
83  Mich.  131,  seems  to  have  overthrown  it.  In  that  case  it  is 
stated  in  the  opinion  written  by  Mr.  Justice  Cahill  that 
"strictly  speaking,  estates  in  entirety  were  abolished  by  the 
statute  of  1846,  C.  L.  '97  Sec.  8825;  Howell  2nd  Ed.  Sec. 
10665,"  which  reads  as  follows:  Estates,,  in  regard  to  the 
number  and  connection  of  their  owners,  are  divided  into 
estates  in  severalty,  in  joint  tenancy,  and  in  common ;  the 
nature  and  properties  of  which  respectively  sKall  continue  to 
be  such  as  are  now  established  by  law  except  so  far  as  the 
same  may  be  modified  by  this  chapter. 

But  in  the  later  case  of  Lewis'  Appeal,  85  .Mich.  340,  the 
case  of  Dowliug  v.  Salliott  was  overruled  so  far  as  it  declares 
that  the  estate  of  the  wife  when  held  jointly  with  her  husband 
is  one  of  joint  tenancy.18 

In  the  Lewis  case  the  court  held  that  in  the^case  of  Dowling 
v.  Salliott  a  correct  result  was  reached  by  the  court,  and 
repudiated  that  decision  only  so  far  as  it  held  that  an  estate 
held  by  husband  and  wife  jointly  was  an  estate  in  joint  ten- 
ancy. 

15.  Insurance  Co.  v.  Resh,  40  17.    Dickey    v.    Converse,    117 
Mich.    241;    Allen     v.     Allen,  47  Mich.   455,  76  N.  W.  80;   Harden- 
Mich.  74,.  10  N.  W.  113.  berg  v.  Hardenberg,  10  N.  J.  Law 

16.  Dowling     v.     Salliott,  83  42,  18  Am.  Dec.  378. 

Mich.  131,  47  N.  W.  225;  Auditor          18.     Lewis  App-.,  85  Mich    340, 
Qeneral   v.   Fisher,   84  Mich.   132,      48  N.  W.  580. 
47  N.  W.  574. 

81 


§91  PROPERTY    RIGHTS 

§91.    Doctrine    of    Survivorship    Does    not  Apply  to   Personal 
Property. 

The  doctrine  of  survivorship  does  not  extend  to  personal 
property  and  securities  owned  by  husband  and  wife  jointly 
and  held  in  the^name  of  both.19 

There  are  some  cases  which  seem  to  conflict  with  the  above 
rule,  but  in  those  cases  the  decision  was  put  upon  the  ground 
that  it  was  apparent  from  the  character  of  the  transaction 
that  the  husband  intended  to  give  the  property  to  his  wife  in 
the  event  of  her  survivorship,  and  hence  the  transaction  pos- 
sessed all  the  essential  qualities  of  a  gift  causa  mortis,  which 
he  might  revoke  in  his  life  time,  and  which  would  not  take 
effect  until  his  death,  if  not  previously  recalled.20 

§92.    Same  Subject  Continued. 

Xor  does  the  doctrine  of  survivorship  apply  to  a  purchase 
money  mortgage  given  to  a  husband  and  wife  jointly  on  the 
sale  of  land  owned  by  the  husband.21  The  interest  of  a  hus- 
band and  wife  in  a  land  contract,  however,  by  which  they  are 
to  receive  a  deed  of  the  land  is  not  an  interest  in  personal 
property,  and,  upon  the  death  of  the  husband  the  entire  inter- 
est passes  to  the  wife  by  right  of  survivorship.22 

§93.     Effect  of  Divorce  on  Title  to  Land  Held  by  Husband  and 
Wife. 

The  legislature  of  1909  passed  an  act  providing  that  where 
real  estate  is  held  by  a  husband  and  wife  as  joint  tenants  or 
tenants  by  entirety,  upon  their  being  divorced,  they  shall  be- 
come tenants  in  common  of  such  real  estate,  unless  the  owner- 
ship thereof  is  otherwise  determined  by  the  decree  of  divorce.23 

It  is  not  competent  for  the  court,  in  fixing  the  amount  of 
alimony,  to  diminish  the  estate  owned  by  the  wife  as  tenant 
by  entireties  with  the  husband.24 

19.  Wait    v.    Bovee,    35    Mich.  22.     Bowen      v.      Lansing,      129 
425:    Luttermoser   v.    Zeuner,   110  Mich.    117,    18   N.  W.    384;     Corn- 
Mich.  186,  68. N.  W.  117.  fort   v.   Robinson,   155   Mich.    143, 

20.  State  Bank  of  Croswell  v.  118   N.   W.    943. 

Johnson,    151   Mich.    584,     115    N.  23.     C.  L.  1915,    (11436) ;    How- 

W.    464;    In     the    matter    of    Al-  ell,    2nd.    Ed.,    §11497. 

brecht,  136  N.  Y.  91,  18  L.  R.  A.  24.     Delor   v.    Delor,    159    Mich. 

329.  628,    124   N.   W.     544;     Brown    v. 

21.  McLeod   v.    Free,   96   Mich.  Brown,  144  Mich.  654,  108  N.  W. 
57,  55  N.  W.  685;  Wait  v.  Bovee,  890. 

35  Mich.  425. 


82 


•CHAPTER   \ 

cnrrr.sY,  MOWER  AND  ASSIGNMENTS. 

§94.  Husband's  Rights  in  Land  of  Deceased  Wife. 

$95.  Dower. 

§96.  Dower  in  Case  of  Lands  Exchanged. 

§97.  Right  of  Alien  or  .Non-Resident  to  Dower. 

§98.  Dower  in  Land  Mortgaged. 

§99.  Widow's  Interest  in  Surplus  after  Sale  on  Mortgage  Foreclosure. 

§100.  Dower  when  Heir  Pays  the  Mortgage. 

§101.  Estimating  Dower  in  Land  Aliened  by  Husband. 

§102.  Dower  May  be  Assigned  by  Probate  Court — When. 

§103.  How  Dower  Assigned  by  Probate  Court. 

§104.  Proceedings  and  Commissioner's  Oath. 

§105.  Dower  in  Land  not  Severable. 

§106.  Widow  may  Occupy  with  Heirs  if  they  do  not  Object. 

94.     Husband's  Rights  in  Land  of  Deceased  Wife. 

At  common  law  a  husband  had  a  prospective  interest  in  land 
owned  by  his  wife,  and  at  her  death  he  became  entitled,  under 
certain  conditions,  to  the  use  of  her  land  during  his  life.  This 
right  of  the  husband  was  called  tenancy  by  the  curtesy. 

At  common  law  four  requisites  were  necessary  to  create  such 
a  tenancy,  viz:  first,  marriage;  second,  seisin  by  the  wife; 
third,  issue,  and  fourth,  death  of  the  wife.1  The  common  law 
estate  by  the  curiscy  has  been  abolished  in  Michigan,2  but  there 
still  remains  on  the  statute  books  an  abrogated  law  enacted 
many  yrars  ago  which  purports  to  give  to  a  husband  an  inter- 
est in  the  land  of  his  deceased  wife  which  in  some  particulars 
resembles  the  common  law  tenancy  by  the  curtesy.  That  law 
provides  i hat  "when  any  man  and  his  wife  shall  be  seized  in 
her  right  of  an  estate  of  inheritance  in  lands,  the  husband 
shall,  on  the  death  of  his  wife,  hold  the  lands  for  his  life  as 
tenant  thereof  by  the  curtesy:  Provided,  That  if  the  wife  at 
her  death  shall  leave  issue  by  any  former  husband,  to  whom 
the  estate  miuhi  descend,  such  issue  shall  take  the  same,  dis- 

1.  Sec.  Blk.  Com.  127;  1  Coke  2.  Tong  v.  Marvin,  15  Mich, 
upon  Littleton  643;  Hathon  v.  60;  Hill  v.  Chambers,  30  Mich. 
Lyon.  2  Mich.  95.  422. 

83 


§95  CURTESY,  DOWER   AND   ASSIGNMENT 

charged  from  the  right  of  the  surviving  husband  to  hold  the 
same  as  tenant  by  the  curtesy."  3 

The  common  law  estate  by  the  curtesy  no  longer  exists  under 
Michigan  laws  now  in  force,  and  the  statutory  estate  provided 
for  in  the  statute  above  quoted  was  quite  different  from  that 
at  the  common  law.  Even  this  was  abrogated  by  the  married 
women's  act  of  1855,4  except  where  it  had  vested  prior  to  that 
act.5 

§95.     Dower. 

By  the  statutes  of  Michigan  the  widow  of  every  deceased 
person  is  entitled  to  dower,  which  consists  of  the  use,  during 
her  natural  life,  of  one-third  part  of  all  the  land  whereof  her 
husband  was  seized  of  an  estate  of  inheritance  at  any  time 
during  the  marriage,  'unless  she  has  been  lawfully  barred 
thereof.6 

§96.    Dower  in  Case  of  Lands  Exchanged. 

If  a  married  man,  seized  of  an  estate  of  inheritance  in  land, 
exchanges  the  same  for  other  land,  his  wife  not  signing  the 
conveyance,  his  widow  is  not  entitled  to  dower  in  both,  but 
may  elect  to  be  endowed  of  the  land  given  or  that  taken  in 
exchange,  If  she  does  not  manifest  her  election  by  proceed- 
ings to  recover  her  dower  within  one  year  after  her  husband's 
death,  she  is  deemed  to  have  elected  to  take  her  dower  of  the 
land  received  in  exchange.7 

The  right  of  dower  is  not  an  undivided  third  of  the  entirety, 
but  of  one-third  in  severalty;  nor  is  it  one-third  in  quantity 
of  the  laud  of  which  a  husband  died  seized,  but  the  use  of 
such  part  as  will  yield  one-third  of  the  income  of  the  whole. s 
Until  it  is  legally  and  duly  assigned,  it  is  a  right  vesting  in 
action  only.  It  is  a  mere  right  of  action  arid  nothing  more.9 

3.  R.    S.    1846,    Page   340,   Sec.  is    the    administrator    authorized 
25;  C.  L.  '97,  §8955;   Howell,  2nd.  to  purchase  a  release  of  such  in- 
Ed.,  §10948;  omitted  in  C.  L.  '15.  terest   for   the   benefit   of  the   es- 

4.  Tong  v.   Marvin,    15    Mich.  tate.      Needham     v.     Belote,     39 
60,  69.  Mich.  487. 

5.  Hill  v.  Chambers,    30  Mich.          7.     C.   L.   '15,    (11655) ;    Howell, 
422;    Brown    v.    Clark,    44    Mich.  2nd.  Ed.,  §10911. 

309,  6  N.  W.  679.  8.     Leonard  v.  Leonard,  4  Mass. 

6.  C.   L.  '15,    (11654);    Howell,       533;    King    v.    Merritt,    67    Mich. 
2nd.  Ed.,  §10910.  216  34  N.  W.  689;  Conner  v.  Shep- 

The  dower  interest  of  a  widow  herd,  15  Mass.  167. 

is   no    part   of   the   estate   of  her  9.     Rayner    v.    Lee,    26    Mich, 

deceased   husband,  and   it  cannot  384;     Galbraith    v.    Fleming,    60 

be  sold  by  his  administrator;  nor  Mich.   412,  27  N.  W.  581. 

84 


DOWEK    IN    LAND    MORTGAGED  §98 

Unassigued  dower,  being  but  a  right  in  action,  is  not  a  Inn  io 
recovery  in  ejectment  by  the  owner  of  the  fe< 

§97.    Right  of  Alien  or  Non-Resident  to  Dower. 

It  is  provided  by  statute  that  the  fact  Hint  a  woman  is  an 
alien  07-  non-resident  of  the  state  does  not  on  that  account  bar 
her  right  of  dower  in  land  lying  in  this  stale.  of  which  her 
husband  died  seized,  and  her  dower  may  be  asM^ned  to  her.  or 
recovered  by  her,  in  the  same  manner  as  if  she  and  her  de- 
ceased husband  had  been  residents  of  this  state  at  the  time  of 
his  death.11  In  the  revised  statutes  of  1846  this  section  does 
not  contain  the  words:  "of  which  the  husband  died  sei/ed." 

The  statute  negatives  the  right  to  dower  of  a  widow  residing 
out  of  the  state  at  the  time  of  her  husband's  death,  except  in 
lands  of  which  he  died  seized.  The  non-residence  mentioned 
refers  to  the  time  of  the  husband's  death. l- 

§98.    Dower  in  Land  Mortgaged. 

When  a  man  is  seized  of  an  estate  of  inheritance  in  lands 
and  shall  have  executed  a  mortgage  on  such  estate  before 
marriage,  his  widow  is  entitled  to  dower  out  of  the  mortgaged 
land  as  against  every  person  except  the  mortgagee  and  those 
that  hold  under  him. 

Dower  is  not  required  to  be  set  off  under  the  laws  of  .Mich- 
igan before  bringing  ejectment  therefor  by  the  widow.14 

The  statutory  action  of  ejectment  is  available  to  no  one  but 
the  widow  prior  to  the  assignment  of  her  dower.  Her  assignee 
cannot  bring  such  action  before  assignment:  but  after  such 
assignment  it  becomes  transferable  the  same  as  any  other  life 
estate.15 

A  widow's  dower  in  an  encumbered  estate  is  liable  to  con- 
tribute to  pay  its  proportion  of  the  interest  accruing  on  the 
encumbrance.1" 

10.  McCammon   v.   D.   L.  &  N.  625;    Campbell    v.    Campbell,    21 
R.  R.  Co.,  66  Mich.  442,  33  N.  W.  Mich.   438;   Burrall  v.  Bender,  61 
728;    King    v.    Merritt,    67    Mich.  Mich.  608,  28  N.  W.  731;   Bowles 
216,  34  N.  W.  689.  v.  Hoard,  71  Mich.  150,  39  N.  W. 

11.  C.  L.  '15,   (11670);  Howell,  24. 

2nd.  Ed.,  §10930.  14.     Burrall  v.  Bender,  61  Mich. 

12.  Pratt  v.  Tefft,  14  Mich.  191,      608.  28  N.  W.  371. 

200.  15.     Galbraith    v.    Fleming,    60 

13.  C.  L.  '15,  (11656);  Howell,      Mich.  408,  27  N.  W.  581. 

2nd.   Ed.,   §10912;     Hall    v.    Mar-          16.     Campbell    v.    Campbell,    21 
shall,    139   Mich.   123,   102   N.   W.      Mich.   438.- 

85 


§99  CURTESY,  DOWER  AND   ASSIGNMENT 

§99.    Widow's  Interest  in  Surplus  after  Sale  on  Mortgage  Fore- 
closure. 

Whenever,  in  case  of  a  mortgage  given  by  the  husband  before 
marriage,  or  to  secure  purchase  money  of  land  mortgaged,  or 
in  case  of  a  mortgage  where  the  wife  shall  have  joined  with 
her  husband,  the  mortgagee,  or  those  claiming  under  him, 
shall,  after  the  death  of -the  husband,  cause  the  mortgaged 
premises  to  be  sold  by  virtue  of  such  mortgage,  and  any  sur- 
plus shall  remain  after  the  payment  of  the  amount  due  on  the 
mortgage  and  the  cost  and  charges  of  the  sale,  the  widow  of 
the  mortgagor  is  entitled  to  the  interest  or  income  of  one-third 
of  such  surplus  for  her  life  as  dower.20 

§100.    Dower  when  Heir  Pays  the  Mortgage. 

In  either  of  the  cases  mentioned  in  the  foregoing  section,  if 
the  heir  pays  and  satisfies  the  mortgage,  the  amount  so  paid 
should  be  deducted  from  the  value  of  the  land,  and,  after  such 
deduction,  the  -widow  is  entitled  to  have  set  out  to  her  for  her 
dower  in  the  mortgaged  land,  the  value  of  one-third  of  the 
residue.21 

§101.    Estimating  Dower  in  Land  Aliened  by  Husband. 

When  a  widow  becomes  entitled  to  dower  in  land  which  the 
husband  has  aliened  in  his  life  time,  and  such  land  shall  have . 
been  enhanced  in  value  after  the  alienation,  such  land  must 
be  estimated,  in  setting  out  the  widow's  dower,  according  to 
its  value  at  the  time  of  its  alienation.22 

A  proceeding  to  which  a  wife  was  not  a  party  will  not  cut 
off  her  right  of  dower.  A  sale  under  a  decree  in  partition 
proceedings,  to  which  the  husband  is  a  party  and  the  wife  is 
not,  will  not  bar  her  right  of  dower.23 

17.  C.  L.  '15,   (11657);  Howell,  shall,    139    Mich.    123,    102   N.   W. 
2nd.    Ed..    §10913.  G58. 

18.  Baker  v.   Pierson,   5  Mich.          21.     C.  L.  '15,  (11659) ;  Howell, 
456;      Crippen    v.    Morrison,     13  2nd.   Ed.,   §10915;    Bemis  v.   Con- 
Mich.  23;  Ladue  v.  D.  &  M.  R.  R.  ley,  49  Mich.  392,  13  N.  W.  789; 
Co.,   13   Mich.    280;    Caruthers   v.  Burrall   v.   Bender,  61   Mich.   60S, 
Humphrey,  12  Mich.  270.  28  N.  W.   731;    Bowles  v.  Hoard, 

19.  Newton    v.    Sly,     15    Mich.  71  Mich.  150,  39  N.  W.  24;  Snyder 
396.  v.  Snyder,  6  Mich.  470. 

20.  C.  L.  '15,  (11658);  Howell,  22.     C.  L.  '15,   (11660);  Howell, 
2nd.      Ed.,      §10914;      Burrall      v.  2nd.   Ed.,   §10916. 

Bender,   61   Mich.    619,    28   N.   W.  23.     Greiner  v.  Klein,  28  Mich. 

731;    Bowles   v.    Hoard,   71   Mich.      12    (Campbell  J.  dissenting). 
150,    39   N.   W.    24;    Hall   v.    Mar- 

86 


ASSKJNMKNT    P.Y    PIJOIJA'l  K    COlUT  §103 

Assignment  of  Dower 

§102.    Dower  May  be  Assigned  by  Probate  Court— When. 

When  the  widow's  claim  of  dower  is  admitted,  or  is  not 
disputed  by  the  heirs,  devisees,  or  persons  claiming  under 
them  or  either  of  them,  it  may  be  assigned  to  her.  in  whatever 
counties  the  hind  may  lie,  by  the  judge  of  probate  for  the 
county  in  which  the  estate  of  the  husband  is  settled,  upon  the 
application  of  the  widow  or  any  other  person  interested  in 
the  land,  not  ire  of  which  application  must  be  given  1o  all 
persons  iirterested.  in  such  manner,  as  the  judge  of  probate 
shall  direct.24 

§103.     How  Dower  Assigned  by  Probate  Court. 

When  the  widow's  right  to  dower  is  admitted  by  the  heirs 
or  those  holding  under  them,  and  an  application  is  made  to 
the  probate  court  to  have  this  dower  assigned,  the  judge  of 
probate  is  required  to  issue  his  warrant  for  that  purpose  to 
three  discreet  and  disinterested  persons,  authorizing  and  re- 
quiring them  to  set  off  the  widow's  dower  by  metes  and  bounds 
when  it  ran  be  done  without  injury  to  the  whole  estate.25 

In  an  application  to  the  judge  of  probate  for  the  assignment 
of  dower,  it  is  advisable  that  notice  of  the  application  be  given 
to  the  administrator,  if  administration  of  the  estate  has  not 
been  closed.  Imt  it  is  not  necessary  in  all  cases.26 

The  revised  statutes  of  1838  regarded  the  assignment  of 
dower  as  a  matter  entirely  between  the  widow  and  the  heir  or 
other  tenants  of  the  land,  and  while  the  statutes  in  regard  to 
the  assignment  of  dower  have  been  somewhat  modified,  it  is 
generally  understood  that  the  rule  announced  in  the  previous 
paragraph  is  still  the  law  of  this  state.  In  the  case  of  an 
insolvent  estate,  where  it  becomes  necessary  to  sell  the  whole 
land  subject  to  the  widow's  dower,  the  administrator  should 

24.     C.  L.  '15,   (13942);  Howell,  is  also  the  subject  of  alienation, 

2nd.   Ed.,   §10917;    Dower  may  be  while      the     homestead     interest 

jissi.ened    in    land    subject   to    the  can  only  he  released  to  the  owner 

widow's  homestead  right.     Under  of    the    fee.      Showers   v.   Robin- 

the  Michigan  statutes  the  widow's  son,   43  Mich.  511,   5  N.  V.  988; 

right   of   dower    and    her    home-  Dei   v.   Habel,   41   Mich.   88,   1   N. 

stead    rights    arc    not    so    far    in-  W.  964. 

consistent    with    each    other   that  25.     C.  L.  '15,   (13943) ;  Howell, 

a  claim   of  one   Is  a  bar  to  the  2nd.  Ed.,  §10918. 

other.     Dower   is    an    estate    for  26.     Campbell's  AppeaJ,  2  Doug, 

life  and    may  continue  after  the  (Mich.)    140. 
homestead   right   has   ceased.     It 

87 


§104  CURTESY,  DOWER  AND  ASSIGNMENT 

be  notified  of  the  application,  and  in  all  cases  such  notice 
should  also  be  given  to  the  heirs,  or  those  claiming  under 
them.27 

A  widow's  dower  may  be  assigned  at  any  time,  either  before 
or  after  administration.  She  is  under  no  necessity  or  obliga- 
tion to  await  the  administration  proceedings  to  have  her 
dower  assigned.28 

Where  the  widow  is  compelled  to  -resort  to  equity  to  obtain 
her  dower  and  her  share  in  the  estate  of  her  husband,  the 
court  will  retain  jurisdiction  for  ,the  purpose  of  disposing  ,of 
the  whole  question  of  dower,  mesne  profits  and  distribution, 
and  where  a  bill  in  equity  is  filed  to  determine  the  right  of 
dower,  partition  and  assignment  may  be  made  in  the  same 
suit.29 

§104.    Proceedings  and  Commissioner's  Oath. 

Commissioners  appointed  by  the  probate  court  to  set  off 
dower  must  be  sworn  to  the  faithful  discharge  of  their  duties, 
and  they  are  required  as  soon  as  may  be  to  set  off  the  dower 
according  to  the  command  of  their  warrant,  and  to  make  to 
the  probate  court  a  return  in  writing  of  their  doings,  with  an 
account  of  their  charges  and  expenses,  and  if  such  report  is 
accepted,  confirmed  and  recorded,  and  a  certified  copy  thereof 
recorded  in  the  office  of  the  register  of  deeds  of  the  county 
where  the  land  is  situated,  the  dower  remains  fixed  and  certain 
unless  such  confirmation  is  set  aside  or  reversed  on  appeal. 
One  half  of  the  costs  of  the  proceedings  is  required  to  be  paid 
by  the  widow  and  the  other  half  by  the  adverse  party.30 

In  partition  proceedings  between  the  widow  and  the  heirs 
where  the  widow  has  both  dower  and  homestead  rights,  the 
assignment  of  dower  should  be  in  the  homestead  land  if  pos- 
sible.31 

§105.    Dower  in  Land  not  Severable. 

When  the  estate  out  of  which  dower  is  to  be  assigned  con- 
sists of  a  mill  or  other  tenement  which  cannot  be  divided 

27.  King  v.   Merritt,   67   Mich.  194,   203;    Brown   v.   Bronson,    35 
194,  34  N.  W.  689.  Mich.   415,  419. 

28.  White     v.     Spaulding,     50  30.     C.  L.  '15,  (13944) ;  Howell, 
Mich.  26,  14  N.  W.   684;   King  v.  2nd.  Ed.,  §10919. 

Merritt,  6.7  Mich.  194,  34  N.  W.  31.  Robinson  v.  Baker,  47 
689.  Mich.  619,  11  N.  W.  410. 

29.  Miller  v.  Stepper,  32  Mich. 


WIDOW    MAY   OCCTI'Y    WITH    HKIUS 


5106 


without,  damage  to  the  whole,  and  in  all  cases  where  the  estate 
cannot  be  divided  by  metes  and  hounds,  the  widow's  dower 
may  be  assigned  out  of  the  rents,  issues  and  profits  thereof,  to 
be  had  and  received  by  her  as  a  tenant  in  common  with  the 
other  owners  of  the  estate.32 

§106.    Widow  may  Occupy  with  Heirs  if  they  do  not  Object. 

By  statute  a  widow  entitled  to  dower  may  continue  to 
occupy  the  land  with  the  children  or  other  heirs  of  her  de- 
ceased husband,  or  may  receive  one  third  part  of  the  rents, 
issues  and  profits  thereof,  without  having  her  dower  assigned, 
so  long  as  the  heirs  or  others  interested  in  the  land  do  not 
object.38 

Under  this  section  of  the  statute,  a  widow  has  a  right  to 
occupy  the  premises  in  which  she  is  entitled  to  dower,  with  the 
children  or  other  heirs  of  her  deceased  husband,  until  some 
steps  are  taken  to  assign  her  dower  or  to  partition  the  estate,8* 
and  such  occupancy  by  the  widow  is  not  adverse  to  the  re- 
maindermen.85 

A  wife  who,  after  the  death  of  her  husband,  continues  by 
common  consent  to  occupy  the  homestead  without  assignment 
of  dower,  the  children  remaining  with  her  as  long  as  they 
choose  and  returning  home  at  pleasure,  holds  the  premises,  not 
as  a  life  tenant,  but  as  a  tenant  in  common  with  the  children. 
Under  such  circumstances  the  widow  cannot  be  charged  with 
rent,  nor  will  she  be  permitted  to  charge  the  estate  for  taxes 
paid  by  her.80 


32.  C.  L.  '15,  (13945) ;  Howell. 
2nd.   Ed.   810920. 

33.  C.  L.  '15,  (11661);   Howell, 
2nd.  Ed.,  §10921. 

34.  Zoellner     v.     Zoellner,     53 
Mich.   627,   19    N.   W.   556;    Bene- 


dict v.  Bui-man,  90  Mich.  402,  51 
N.  W.  461. 

t   35.     Lumley    v.    Haggerty,    110 
Mich.  552,  68  N.  W.  243. 

36.    In   Re   Graff's   Estate,   123 
Mich.  56,  82   X.  W.  248. 


89 


CH-APTER  XI.  \ 

BARBING  DOWER  AND  ELECTION. 

§107.  Methods  of  Barring  Dower  by  Wife  or  Widow. 

§108.  Dower  Barred  by  Antenuptial  Jointure. 

§109.  How  Assent  Expressed.  \ 

§110.  Antenuptial   Settlement. 

§111.  Election  in  Case  of  Jointure  or  Pecuniary  Provisions. 

§112.  Election  in  Case  of  Provision  by  Will  of 'Husband. 

§113.  Election.— What  Constitutes. 

§114.  New  Assignment  if  Widow  Lawfully  Evicted'. 

§115.  Rights  of  Dower  of  Non-Residents  and  Aliens. 

§107.     Methods  of  Barring  Dower  by  Wife  or  Widow. 

It  is  provided  by  statute  that  "a  married  woman  residing  in 
this  state  may  bar  her  right  of  dower  in  any  estate  conveyed 
by  her  husband,  or  his  guardian,  if  he  be  under  guardianship, 
by  joining  in  the  deed  of  conveyance  and  acknowledging  the 
same,  or  by  joining  with  her  husband  in  a  subsequent  deed 
acknowledged  in  like  manner,  or  by  deed  executed  by  the  wife 
alone  to  one  who  has  theretofore  acquired  and  then  holds  the 
husband's  title,  provided  the  intent  to  bar  her  right  of  dower 
shall  be  expressed  in  said  deed."  1 

A  wife's  parol  agreement  to  release  her  right  of  dower  is 
not  valid,  nor  will  a  covenant  by  a  widow  against  her  own  act 
in  a  deed  given  by  her  as  administratrix,  in  her  representative 
capacity,  of  land  belonging  to  her  deceased  husband,  bar  or 
estop  her  from  claiming  dower  therein.2 

This  section  contemplates  that  a  married  woman  can  bar 
her  dower  by  joining  in  a  deed  with  her  husband,  and  acknowl- 

1.  C.   L.   '15,    (11679),    (12725-  free   from  fraud,   still,   when  the 
30) ;  Howell,  2nd.  Ed.,  §10922.  purchase  and  sale  of  land  in  this 

2.  Wright  v.  DeGroff,  14  Mich.  state   by  a   non-resident  husband 
164;     Hayes     v.     Livingston,     34  is     a     part     of     a     scheme     to 
Mich.     392.      While    non-resident  perpetrate  a  fraud  upon  the  wife 
wives   are  not  entitled  to   dower  for  the  purpose,  of  depriving  her 
in  lands  in  this  state  which  have  of      dower,     the     principles     laid 
been    conveyed   by    the     husband  down   in   Legare   v.   Semple  have 
while  a  non-resident,    (Ligare    v.  no  application — Bear  v.  Stahl,  61 
Semple,   32   Mich.   449),   in   cases  Mich.   215,  28   N.  W.   69. 

90 


MKTHOU    or    r.AKUI.NCi     LoWKK  §107 

edging  (lie  same  in  tin-  inainier  required  by  law.  A  deed  not 
acknowledge*  1  by  her  \\ill  not  bar  her  right  of  dower  even 
although  she  may  have  signed  the  same.3 

A  release  i»f  dower  procured  by  fraud,  undue  influence,  or 
for  an  insntlicient  consideration,  will  be  set  aside.4  . 

It  is  not  i lie  policy  of  the  law  to  favor  the  separation  of 
husband  and  wife  with  or  without  divorce,  and  a  contract 
between  husband  and  wife  providing  for  a  separation,  or  which 
is  liable  to  favor  one  which  has  not  yet  taken  place,  will  not 
be  sustained.  But  where  a  separation  has  actually  taken 
place,  or  where  the  husband  and  wife  have  fully  decided  to 
separate,  a  release  of  dower  to  the  husband  will  be  sustained 
which  does  not  spring  from  fraud  or  coercion,  and  which  con- 
templates a  suitable  provision  for  the  wife  and  children,  if 
any,  by  an  equitable  division  of  the  property."' 

A  husband,  by  will  or  otherwise,  cannot  bar  his  wife's  right 
of  dower,  nor  can  she  be  divested  of  such  right  except  by 
statute  or  her  own  voluntary  act.0  Nor  will  equity  compel 
performance  by  her  of  her  husband's  agreement  that  she  shall 
release  her  dower.7 

The  recovery  of  dower  may  be  barred  by  the  statute  of  limi- 
tations.8 

Where,  on  a  decree  for  separate  maintenance,  no  provision 
is  made  for  a  division  of  the  property,  and  the  husband  sub- 
sequently inherits  land  which  he  conveyed  without  the  wife's 
signature,  the  widow  is  .not  barred  of  her  dower  interest  in 
the  laud  so  conveyed.9 

A  valid  tax  title  will  cut  off  dower  rights.1"  bin  such  dower 
rights  cannot  be  destroyed  or  cut  off  by  proceedings  in  par 

3.  Maynard      v.      Davis.       127       198. 

Mich.    571,   578.    86   N.    W.    1051.  7.     Weed     v.     Terry»    2     Doug. 

The  method  of  barring  dower  by  (Mich.)    344,    overruling   on    this 

Jointure  as  provided  by  C.  L.  '15.  noint   the   same   case  reported   in 

(11663),  Howell.  2nd.  Ed..  §§10923,  Walker's     Chancery,     501;     Rich- 

10924,    does    not    exclude   or   pro-  mond  v.  Robinson,  12  Mich.  193; 

hibit  the   method   by  antenuptial  Buchoz  v.  Walker,  19  Mich.  224; 

agreements       adopted       by       the  Ligare   v.   Semple,   32    Mich.   443. 

parties — Hocken berry  v.  Donovan,  8.     Butcher     v.     Butcher,     137 

170  Mich.  370,  136  N.  W.  389.  Mich.  392,  100  N.  W.  604;    Beebe 

4.  Miller  v.   Stepper,   32  Mich.  v.   Lyle,   73   Mich.   114,   40  N.  W. 
194.  944. 

5.  Randall      v.      Randall,      37  9.     Killackoy    v    Killackey,   156 
Mich.   563;    Rhoades  v.   Davis,   51  Mich.   127,  120  N.  W.  680. 

Mich.  306,  311,  16  N.  W.  659.  10.     Robhins      v.      Barron,      32, 

6.  Miller   v.   Stepper,   32  Mich.      Mich.  39. 

91 


§108  BARRING    DOWER   AND    ELECTION 

titiou,  to  which  the  claimant  is  not  a  party,11  nor  by  sale  of 
land  of  the  claimant's  husband  on  execution  against  him.12 

A  dower  righ^:  cannot  be  established  in  land,  the  deed  of 
which  to  claimant's  husband  has  never  been  recorded,  where 
the  title  to  the  land  has  passed  to  subsequent  purchasers  in 
good  faith.13 

§108.    Dower  Barred  by  Antenuptial  Jointure. 

"A  woman  may  also  be  barred  of  hep  dower  in  all  the  land  of 
her  husband,  by  jointure  settled  on  her  with  her  assent  before 
the  marriage,  provided  such  jointure  consists  of  a  freehold 
estate  in  the  lands  for  the  life  of  the  wife  at  least,  to  take 
effect  in  possession  or  profit  immediately  on  the  death  of  her 
husband."  14 

An  antenuptial  agreement  by  which  a  woman,  in  considera- 
tion of  five  dollars  and  of  love  and  affection,  releases  all  right 
of  dower  which,  upon  fhe  death  of  her  intended  husband,  she 
as  his  widow  may  have  in  his  estate,  is  not  sufficient  to  bar  her 
dower  therein.15 

§109.    How  Assent  Expressed. 

"Such  assent  shall  be  expressed,  if  the  woman  be  of  full  age, 
by  her  becoming  a  party  to  the  conveyance  by  which  it  is 
settled,  and  if  she  be  under  age,  by  joining  with  her  father  or 
guardian  in  such  conveyance." 16 

§110.    Antenuptial  Settlement. 

The  statute  also  provides  that  "any  pecuniary  provision 
that  shall  be  made  for  the  benefit  of  an  intended  wife,  and  in 
lieu  of  dower,  shall,  if  assented  to  as  provided  in  the  preceding 
section  (C.  L.  '97,  §8932;  Howell,  2nd  Ed.  §10924),  bar  her 
right  of  dower  in.  all  the  lands  of  her  husband."  17 

11.  Greiner  v.  Klein,  28  Mich.  16.     C.  L.  '15,  (11664) ;   Howell, 
12.  2nd.  Ed.,  §10924;   In  re  Falling's 

12.  Snyder  v.  Snyder,  6  Mich.  Estate,   93  Mich.   274,   277,   52   N. 
470.  W.    1116. 

13.  Wheeler  v.  Smith,  55  Mich.  17.     C.  L.  '15,  (11665) ;  Howell, 
355,  21  N.  W.  370.  2nd.   Ed..   §10925;     6    Johns.    Ch. 

14.  C.  L.  '15,  (11663);  Howell,  194;    1   Johns.   307;    Thompson  v. 
2nd.  Ed.,  §10923.  Tucker-Osborn,   111  Mich.   470,  69 

15.  In    re   Estate    of    Pulling,  N.  W.   730. 
93  Mich.  274,  52  N.  W.  1116. 

92 


ELECTION    IN   CASE   OF    WILL  OF    HlSKA.Mt 

Anti'iiii].ii;il  contracts  may  be  enforced  in  a  court  of  equity 
by  a  hill  for  specific  performance.18 

§111.    Election  in  Case  of  Jointure  or  Pecuniary  Provisions. 

If  a  jointure  or  pecuniary  provision  be  made  for  the  benefit 
of  an  intended  wife,  before  marriage,  and  without  her  assent, 
or  if  it  be  made  after  marriage,  she  must  make  her  election, 
after  the  deatli  of  her  husband,  whether  she  will  take  such 
jointure  or  pecuniary  provision,  or  be  endowed  of  the  land  of 
her  husband  ;  hut  she  is  not  entitled  to  both.10 

§112.     Election  in  Case  of  Provision  by  Will  of  Husband. 

If  land  is  devised  to  a  woman,  or  other  provision  -made  for 
her  by  the  will  of  her  husband,  she  must^make  her  election 
whether  she  will  take  the  land  so  devised,  or  the  provision  so 
made,  or  whether  she  will  be  endowed  of  the  land  of  her 
husband ;  but  she  will  not  be  entitled  to  both,  unless  it  plainly 
appears  by  Ihe  will  to  have  been  so  intended  by  the  testator.20 
The  election  which  the  widow  is  required  to  make  is  between 
the  provisions  in  the  will,  or  other  provisions  mentioned,  and 
dower  in  the  land  of  which  her  husband  died  seized.  Her 
election  to  take  under*  the  will  does  not  bar  her  dower  in  land 
winch  the  husband  had  conveyed  in  his  life  time  and  during 
the  marriage,  by  conveyance  in  which  she  did  not  join.21 

A  widow  of  a  testator  dying  without  issue,  who  elects  under 
the  statute  (C.  L.  '07,  §8935;  Howell,  2nd  Ed.  §10927),  to  take 
under  the  statute  rather  than  under  the  will,  becomes  entitled 
to  the  dower  interest  in  his  land  provided  for  by  C.  L.  '97. 
§8918;  Howell,  2nd  Ed.  §10910,  and  not  to  the  one  half  interest 
in  his  land  provided  for  by  the  statute  of  descent ;  a  wife  may 
be  cut  off  from  the  benefit  of  the  statute  of  descent  by  the 
provisions  of  her  husband's  will.22 

A  widow's  relinquishment  of  dower,  and  her  acceptance  of 
the  provisions  of  the  will,  makes  her  a  creditor  of  the  estate 
on  the  same  footing  with  other  creditors,  and  if  the  estate  is 

18.  Thompson     v.     Tucker-Os-      N.  W.  680. 

born,  111  Mich.  470,  69  N.  W.  730;  20.     C.  L.  H5,  (11666) ;  Howell, 

Koch  v.  Koch,  126  Mich.   187,  85  2nd.  Ed.,  §10927. 

X    W.  455.  21.    Westbrook  v.  Vanderburgh, 

19.  C.  L.  '15.  (11666);  Howell,  36    Mich.    30;    Killackey    v.    Kil- 
2nd.    Ed..    510926;    6    Johns.    Ch.  lackey,  156  Mich.  135,  120  N.  W. 
194;  Koch  v.  Koch,  126  Mich.  189,  680. 

85    N.    W.     455;     Killackey,     v.          22.    Stearns     v.     Perrin,      130 
Killackey,  156  Mich.  127,  135,  120      Mich.  456,  90  N.  W.  712. 

93 


§113  BARRING    DOWER    AND    ELECTION 

insufficient  her  provision  can  only  be  paid  pro  rata  with  other 
creditors.23 

§113.    Election.— What  Constitutes. 

When  a  widow  is  entitled  to  make  an  election  whether  she 
will  take  under  her  husband's  will,  or  under  the  provisions  of 
the  statute,  she  is  deemed  to  have  elected  to  take  such  jointure, 
devise  or  other  provision,  unless  within  one  year  after  the  death 
of  her  husband  she  shall  commence  proceedings  for  the  assign- 
ment or  recovery  of  her  dower.24  The  statute  does  not  permit 
the  widow  to  make  two  elections,  one  accepting  the  terms  of 
the  will  as  to  real  estate  and  rejecting  its  terms  as  to  personal 
property.25  , 

If  a  widow  fails  to  commence  proceedings  for  the  assign- 
ment or  recovery  of  her  dower  within  one  year  after  the  death 
of  her  husband,  as  provided  by  statute,  and  petitions  the  pro- 
bate court  to  proceed  under  the  provisions  of  the  will  and 
allow  her>  a  reasonable  sum  out  of  the  estate,  instead  of  her 
dower  interest  in  lieu  thereof,  she  waives  her  right  of  dower, 
and  has  elected  to  take  under  the  will,26  but  this  does  not 
waive  her  homestead  right  if  one  exists.27 

The  statutory  right  of  a  widow  to  elect  to  take  under  the 
provisions  of  the  statute  in  lieu  of  the  terms  of  the  will  is-  a 
personal  right  and'  not  assignable.28 

§114.    New  Assignment  if  Widow  Lawfully  Evicted. 

If  a  woman  is  lawfully  evicted  of  lands  assigned  to  her  as 
dower  or  settled  upon  her  by  jointure,  or  is  deprived  of  the 
provision  made  for  her  by  will  or  otherwise,  in  lieu  of  dower, 
she  may  be  endowed  anew,  in  like  manner  as  if  such  assign- 
ment, jointure,  or  other  provision  had  not  been  made.-'1 

X 

§115.    Rights  of  Dower  of  Non-Residents  and  Aliens. 

"A  woman,  being  an  alien,  shall  not  on  that  account  be 
barred  of  her  dower,  and  any  woman  residing  out  of  the  state 

23.  Tracy  v.  Murray,  44  Mich.  80;  In  re  Bloss'  Estate,  114  Mich. 
109,  6  N.  W.  224.  204,  72  N.  W.  148. 

24.  C.  L.  '15,  (11668) ;  Howell,  27.    Koster  v.  Gillen,  124  Mich. 
2nd.    Ed.,    §10928.  149,  82  N.  W.  823. 

25.  In    re    Bloss'    Estate,    li4  28.     In  re  Service's  Estate,  155 
Mich.  204,  72  N.  W.  148.  Mich.  179,  118  N.  W.  948. 

26.  Koster  v.  Gellen,  124  Mich.  29.     C.  L.  '15,   (11669) ;  Howell, 
149,  82  N.  W.  823;   In  re  Smith's  2nd.  Ed.,  §10929. 

Estate,    60    Mich.    142,    27    N.    W. 

94 


KKJIITS  or  nowr.u  or  xox  UKSIKKXTS  AXI>  AI.IKXS        §!!."> 

shall  bo  cni  ii  led  m  dower  of  the  land  of  her  deceased  husband, 
lying  in  this' state,  of  which  her  husband  died  seized,  and  the 
same  may  be  assigned  to  her  or  recovered'  by  her  in  like  man 
IHT  as  if  she  and  her  deceased  husband  had  been  residents 
within  this  state  at  the  time  of  his  death.80 

This  section  <(.'.  L.  '1)7,  §8938;  Howell,  2nd  Ed.  §10930), 
negatives  the  right  to  dower  of  a  widow  residing  out  of  the 
state  at  the  time  of  her  husband's  death,  except  in  land  of 
which  he  died  seized.  The  non-residence  mentioned  refers  to 
the  time  of  the  husband's  death/'11 

But  in  Ligare  v.  Semple,32  it  is  held  that  if  the  woman  is  a 
non-resident  at  the  time  her  husband  conveys  absolutely  and 
divests  himself  entirely  of  his  seisin  and  estate,  there  can  be 
nothing  for  the  riijit  of  dower  to  attach  to.  She  is  a  non- 
resident, and  the  estate  and  seisin  are  gone,  and  the  same 
estate  and  seisin  can  never  return. 

Where  a  husband  at  the  time  of  his  death  has  lost  title  to 
land  by  adverse  possession,  his  non-resident  widow's  dower 
right  is  also  extinguished.  The  statute  gives  a  non-resident 
widow  dower  in  only  the  lands  of  whicli  the  husband  died 
seized.33 

30.  C.  L.  '15,  (11670);   Howell.      200. 

2nd.  Ed.,  §10930;   See  R.  S.  1838,  32.     Ligare  v.  Semple,  32  Mich, 

page    265,    Sec.    15,    which    does  444. 

not  contain  the  words  "of  which  33.     Putney      v.      Vinton,      145 

the  husband  died  seized."  Mich.  219,  108  N.  W.  655. 

31.  Pratt  v.  Tefft,  14  Mich.  191, 


95 


CHAPTER  XII. 

EIGHTS,  DUTIES  AND  OBLIGATIONS  OF  DOWRESS. 

§116.  Repairs,  Waste,  Etc. 

§117.  Widow'sMlight  to  Remain  in  Dwelling  House  and  Have  Support. 

§118.  Damages  for  Withholding  Dower. 

§119.  Measure  of  Damages  for  Withholding  Dower. 

§120.  No  Damages  Estimated  on  Improvements. 

§121.  Damages  when  Heir  Has  Aliened  the  Land. 

§122.  Assignment  of  Dower  as  Bar. 

§123.  Collusive  Recovery  of  Dower  as  against  Infant  Heirs. 

§116.    Repairs,  Waste,  Etc. 

Every  woman  endowed  with  land  is  required  to  maintain 
the  house,  tenement,  appurtenances  and  fences  in  good  repair, 
and  if  she  commits  or  suffers  any  waste  to  be  committed,  she 
is  liable  to  the  person  or  persons  having  the  next  immediate 
estate  of  inheritance  therein  for  all  damages  occasioned  by 
any  waste  committed  or  suffered  by  her.1  It  is  also  her  duty 
to  pay  and  discharge  her  just  proportion  of  all  taxes  and 
public  burdens  laid  upon  the  premises  while  her  estate  lasts. 
And  where  she  holds  by  virtue  of  her  dower  right,  in  common 
with  others,  she  also  is  obliged  to  bear  her  just  proportion  of 
the  expenses  necessary  to  keep  the  common  property  in  repair. 
The  common  owners  are  liable  to  contribution  to  each  other 
for  their  just  proportion  of  taxes  and  repairs  for  their  com- 
mon benefit,  and  this  may  be  recovered  in  an  action  at  law.2  ' 

§117.    Widow's  Right  to  Remain  in  Dwelling  House  and  Have 
Support. 

The  statute  permits  a  woman  to  remain  in  the  dwelling 
house  of  her  deceased  husband  free  of  rent,  for  one  year  after 
his  death,  and  to  have  her  reasonable  sustenance  out  of  his 
estate  for  the  same  period.3 

1.  C.  L.  '15,    (11671);   Howell,  Zoellner,   45   Mich.   358,   8   N.  W. 
2nd.    Ed.,   §10931.  57;   Kitchell  v.  Midgett,  37  Mich/ 

2.  Rea    v.    Rea,    63    Mich.    268,  86;    Covert  v.  Morrison,  49  Mich. 
29  N.  W.  703.  136,   13 -N.   W.   390;     Zoellner    v. 

3.  C.   L.   '15,    (11672);    Howell,  Zoellner.  53   Mich.   620,  19  N.  W. 
2nd.    Ed.,    §10932;      Pettiford     v. 

96 


MEASURE   OF    DAMASKS    FOR    WITHHOLDING    DOWER         §119 

It  is  the  duty  of  a  widow  who  applies  for  an  allowance  out 
of  her  husband's  estate,  after  the  expiration  of  the  statutory 
year,  to  make  some  showing  of  her  needs  and  circumstances 
if  required  by  the  probate  judge.4  The  statute  gives  the  widow 
the  absolute  right  to  her  reasonable  sustenance  out  of  her 
husband's  estate  for  the  period  of  one  year  after  his  death, 
ami  this  is  a  vested  right  which  the  probate  court  has  no 
authority  to  withhold  from  her.5 

The  court  may  in  its  discretion  allow  her  support  out  of  her 
husband's  estate  after  the  statutory  period  of  one  year. 

§118.    Damages  for  Withholding  Dower. 

Whenever  in  an  action  brought  for  that  purpose,  a  woman 
shall  recover  her  dower  in  lands  of  which  her  husband  shall 
have  died  seized,  she  shall  be  entitled  also  to  recover  damages 
for  the  withholding  of  such  dower.0 

Before  dower  is  assigned  the  rents  and  profits  of  the  la  ml 
go  to  the  administrator,  if  necessary  to  pay  debts,  but  if  the 
estate  is  solvent,  and  the  rents  and  profits  of  the  land  are  not 
needed  to  satisfy  the  claims  of  creditors,  the  widow  will  be 
entitled  to  her  share  of  them  from  the  time  of  the  husband's 
death.7 

§1 19.     Measure  of  Damages  for  Withholding  Dower. 

Such  dn mages  shall  be  one-third  part  of  the  annual  value  of 
the  mesne  profits  of  the  lands  in  which  she  so  recovered  her 
dower,  to  be  estimated  in  a-  suit  against  the  heirs  of  her 
husband,  from  the  time  of  his  death  :  and  in  suits  against  other 
persons,  from  the  time  of  demanding  her  dower  of  such  per- 
sons.8 

556;    Rea   v.    Rea,   63    Mich.    263,  r>0  N.  W.  319. 

29  N.  W.  703;   Pulling  v.  Durfee,  4.     Pulling  v.  Durfee,  88  Mich. 

85   Mich.    34,    48     N.    W.     48.     A  387,  50  N.  W.  319. 

widow   is   entitled    as    matter   of  5.    Bacon  v.  Judge  of  Probate, 

right    to    her   reasonable   susten-  100   Mich.    189,    58    N.    W.    835; 

ance  out  of  the  estate  of  her  de-  Brown     v.     Joiner,    77    Ga.    232; 

ceased     husband     for     one     year  Pulling   v.   Judge   of   Probate,   88 

after   his  death,   and   in   case   he  Mich.  387,  50  N.  W.  319;  Bliss  v. 

died   testate,   the    probate    judge  Probate  Judge,  149  Mich.  271,  112 

may  use  his  discretion  as  to  con-  N.   W.  911. 

tinning  the  allowance  djirijig  the  6.     C.  L.  '15,    (11673);    Howell, 

progress  of  the  settlement  of  the  2nd.  Ed.,  §10933;  Rea  v.  Rea,  63 

estate,    but    never    for    a    longer  Mich.  264,  29  N.  W.  703. 

period    than    until    the    widow's  7.     Miller  v.   Stepper,  32   Mich. 

share  is  assigned  to  her — Pulling  199,  200. 

v.  Judge  of  Probate,  88  Mich.  387,  8.     C.  L.  '15,    (11674);    Howell, 

97 


§120  RIGHTS,    DUTIES   AND   OBLIGATIONS   OP   DOWERESS 

The  bringing  of  an  action  of  ejectment  to  recover  dower  is 
a  sufficient  demand,  and  if  the  widow  recovers  dower  in  such 
action,  she  may  institute  supplementary  proceedings  to  re- 
cover mesne  profits  without  any  further  demand.9 


§120.    No  Damages  Estimated  on  Improvements. 

Damages  for  withholding  dower  cannot  be  recovered  for  the 
use  of  any  permanent  improvement  made  after  the  death  of 
the  husband  by  his  heirs,  Or  by  any  other  persons  claiming 
title  to  the  land.10 

§121.    Damages  when  Heir  Has  Aliened  the  Land. 

If  a  widow  recovers  dower  iu  land  aliened  by  the  heir  of 
her  husband,  she  is  entitled,  in  an  action  on  the  case,  to  re- 
cover of  such  heir  her  damages  for  withholding  dower,  from 
the  time  of  the  death  of  her  husband  to  the  time  of  alienation 
by  the  heir,  not  exceeding  six  years  in  the  whole;  and  the 
amount  which  she  shall  be  entitled  to  recover  from  such  heir 
shall  be  deducted  from  the  amount  she  would  otherwise  be 
entitled  to  recover  from  such  grantee,  and  any  amount  recov- 
ered as  damages  from  such  grantee  shall  be  deducted  from  the 
sum  which  she  would  otherwise  be  entitled  to  recover  from 
such  heir.11 

§122.    Assignment  of  Dower  as  Bar. 

When  a  widow  has  accepted  an  assignment  of  dower,  in 
satisfaction  of  her  claim  upon  all  the  land  of  her  husband, 
such  acceptance  is  a  bar  to  any  further  claim  of  dower  against 
the  heir  of  such  husband,  or  any  grantee  of  such  heir  of  such 
husband,  unless  such  widow  shall  have  been  lawfully  evicted 
of  the  land  so  assigned  to  her  as  such  dower.12 

§123.     Collusive  Recovery  of  Dower  as  against  Infant  Heirs. 

If  a  widow  who  is  not  entitled  to  dower  shall,  during  the 
infancy  of  the  heirs  of  her  husband,  or  any  of  them,  or  of  any 

2nd.    Ed.,     §10934;     Killackey    v.  10.     C.  L.  '15,  (11675) ;  Howell, 

Killackey,   166  Mich.    311,  131  N.  2nd.   Ed.,   §10935. 

W.  519.  11.     C.  L.  '15,   (11676) ;  Howell, 

9.     Killackey  v.   Killackey,   166  2nd.  Ed.,  §10936. 

Mich.  315,  131  N.  W.  519;  Fuller  12.     C.  L.  '15,  (11677);  Howell, 

v.   Hubbard,   7   Cow.    (N.  Y.)    13,  2nd.    Ed.,    §10937;    Westbrook    v. 

16  Am.  Dec.  423.  Vanderburg,   36   Mich.   33. 

98 


'COLLUSIVE  RECOVERY  OF  DOWER  §123 

person  entitled  to  the  land,  recover  dower  by  the  default  or 
collusion  of  the  guardian  of  such  infant  heir  or  other  pepsor, 
such  heir  or  other  person  so  entitled  shall  not  be  prejudiced 
thereby,  but  when  he  becomes  of  full  age  he  may  bring  an 
action  against  such  widow  to  recover  the  lands  which  were 
wrongfully  awarded  to  her  as  dower.13 

13.    C.  L.  '15,  (11678) ;  Howell,      2nd.  Ed.,  §10938. 


99 


CHAPTER  XIII. 

BARRING  DOWER  OF  INSANE  PERSONS  AND  MINORS. 

I 

§124.  Insane,   Imbecile,   Idiotic  and  Minor   Married  Women. 

§125.  Proceedings — Contents   of   Petition. 

§126.  Order  and  Notice  of  Hearing. 

§127.  Proceedings: — Appearance  and  Answer. 

§128.  Guardian's   Sale  of  Wife's  Interest. 

§129.  Disposition  of  Fund. 

§130.  Barring  Minor's  Dower. 

§131.  Award  of  Money  in  Lieu  of  Dower. 

§132.  Dower  Claimed  by  Two  or  More  Widows. 

§12-1.     Insane,  Imbecile,  Idiotic  and  Minor  Married  Women. 

Under  certain  circumstances  and  conditions  the  right  of 
dower  of  insane,  imbecile,  or  idiotic  married  women  may  be 
barred  by  judicial  proceedings. 

If  the  wife  has  become  insane,  imbecile,  or  idiotic,  or  for 
any  cause  shall  be  unable  from  defective  intellect  to  join  with 
her  husband  in  the  conveyance  of  real  estate,  and  shall  have 
remained  in  that  condition  for  more  than  two  years,  or  when 
it  shall  be  made  to  appear  to  the  court  that  she  is  incurably 
insane,  she  may  be  barred  of  her  right  of  dower  in  the  lands  of 
her  husband  by  the  order  and  decree  of  a  court  of  chancery.1 

§125.    Proceedings. — Contents  of  Petition. 

In  the  cases  mentioned  in  the  last  section,  the  husband  of 
such  insane,  imbecile,  or  idiotic  married  woman,  or  any  person 
interested  in  such  real  estate,  may  apply  to  the  circuit  court 
in  chancery  of  the  county  where  such  land  or  any  part  thereof 
is  situated,  by  a  petition  under  oath,  for  the  appointment  of  a 
guardian  and  for  leave  to  sell  the  inchoate  right  of  dower  of 
such  married  woman.  ^ 

The  petition  must  state:  first,  the  name,  residence  and  age 
of  the  husband,  as  near  as  can  be  ascertained;  second,  the 
nature  of  the  disability  of  such  married  woman  and  the  length 
of  time.it  has  existed;  third \  a  full  description  of  the  land  and 

1.     C.  L.  '15,  (12725) ;  Cummins       Howell,  2nd.  Ed.,  §10939. 
&  Beecher's  Mich.  Judicature  Act; 

• 

100 


Al'I'KAKAM'K    A  M  •    A.NSUKl:  §127 

premises  in  this  state  to  be  affected  by  such  proceedings; 
fourth,  the  value  of  each  parcel  of  real  estate,  and  the  amount 
of  em-uinln-ance  on  it  i  if  any  I  not  affected  by,  or  prior  to,  her 
••la i in  of  dower;  fifth,  if  the  real  estate  is  to  be  sold  by  the 
hnsliand.  or  lias  been  sold  by  him,  the  exact  amount  of  the 
consideration  of  such  sale  as  made  or  agreed  upon;  and, 
sixth,  the  reasons  why- such  sale  is  desirable  to  such  husband 
or  other  person.2 

§126.     Order  and  Notice  of  Hearing. 

Upon  the  tiling  of  such  petition,  the  said  circuit  court  in 
•  -ham-cry  shall  enter  an  order  that  the  petition  be  heard  on  a 
certain  day,  and  notice  of  the  hearing  be  given  by  publication 
or  otherwise,  in  such  manner  and  to  such  persons  as  said 
court  shall  direct.8 

The  question  of  the  manner  in  which  and  to  whom  notice  of 
t  he*  application  and  hearing  shall  be  given  seems  to  be  left 
entirely  to  the  discretion  of  the  court.  It  would  probably  not 
be  sufficient  to  serve  such  notice  on  the  wife  personally,  for 
the  reason  that  the  petition  itself,  if  prepared  in  accordance 
with  the  statute,  must  show  that  she  is  incompetent  to  under- 
stand and  know  the  effect  and  purpose  of  such  service.  Notice 
by  publication  would  be  no  more  effectual  so  far  as  the  wife's 
competency  to  understand  and  comprehend  its  purpose  is  con- 
cerned. If  the  incompetent  wife  is  already  under  guardian- 
ship, the  most  effectual  way  of  insuring  the  protection  of  her 
rights  would  probably  be  to  serve  notice  of  the  hearing  on 
such  guardian.  If  she  lias  no  guardian,  such  notice  ought  to 
be  served  on  her  nearest  relation.  Whatever  method  of  service 
is  adopted  the  court  should  carefully  guard  the  rights  of  the 
incompetent  wife  and  see  to  it  that  such  notice  is  given  as  will 
bo  likely  to  protect  her  rights  fully. 

§127.    Proceedings —Appearance  and  Answer. 

At  the  time  appointed  for  tho  hearing  it  should  l»e  made  to 
appear  to  the  satisfaction  of  the  court  that  notice  of  such 
hearing  has  been  served  in  the  manner  directed  in  the  order. 
The  wile  may  appear  in  person  or  by  counsel,  or  by  guardian 
ml  liii-ni  nppninted  as  in  other  cases  by  the  court,  and  may 
answer  such  petition  within  the  time  and  in  such  manner  as 
the  court  may  direct. 

2.    -C.  L.  '15,  (12726) ;  Cummins  3.     C.  L.  '15,  (12727)  ;  Cummins 

&  Beecher's  Mich.  Judicature  Act,  &  Beecher's  Mich.  Judicature  Act, 
8849;  Howell,  2nd.  Ed.,  §10940.  5850;  Howell,  2nd.  Ed..  $10941. 

101 


§128  BARRING  DOWER  OF   INSANE   PERSONS 

Upon  the  filing  of  the  answer  the  case  is  deemed  at  issue. 
When  the  case  is  at  issue,  or  if  the  wife  shall  fail,  to  appear, 
the  court  may  proceed  summarily,  upon  oral  or  written  evi- 
dence taken  under  its  order,  to  hear  and  determine  the  case,  or 
in  its  discretion  may  refer  it  to  a  circuit  court  commissioner, 
or  a  special  commissioner  appointed  by  the  court,  to  take 
proofs  and  report  the  same  to  the  court,  with  his  opinion 
thereon :  first,  as  to  the  insanity  or  imbecility  of  the  respon- 
dent; second,  as  to  the  propriety  or  necessity  of  selling  said 
real  estate,  or  of  barring  the  respondent's  right  of  dower 
therein:  and  third,  the  cash  value  at  that  time  of  her  dower 
interest  in  said  premises,  taking  into  consideration  the  respec- 
tive ages  of  said  husband  and  wife. 

Upon  the  closing  of  proof,  if  taken  before  the  court,  and 
upon  the  coming  in  of  the  commissioner's  report,  if  the  case 
has  been  referred  to  a  commissioner,  the  court  will  consider 
the  same,  and  enter  such  order  and  decree  as  shall  be  just' and 
equitable.  If  the  court  finds  that  the  respondent  is  insane, 
and  that  it  is  desired  that  her  right  of  dower  should  be  barred, 
the  then  present  value  of  such  dower  will  be  fixed  by  the 
court.  After  the  present  value  of  the  dower  has  been  fixed, 
the  court  should  appoint  a  guardian  of  such  insane  person. 
The  husband  cannot  be  appointed  as  such  guardian.  The 
guardian  appointed  must  give  a  bond  in  such  sum  and  with 
such  sureties  as  the  court  may  direct,  conditioned  to  receive 
and  invest  any  money  that  may  come  into  his  hands  for  the 
sole  use  and  benefit  of  his  ward,  under  the  order  and  direction 
of  the  court,  both  as  to  its  investment  and  the  disposition  of 
the  income  thereof.4 

§128.     Guardian's  Sale  of  Wife's  Interest. 

Upon  the  approval  of  such  bond  by  the  court,  the  guardian 
may  sell  the  interest  of  such  married  woman  in  such  land  .at 
private  sale,  but  not  for  a  less  sum  than  the  value  fixed  by  the 
court.  He  may  join  with  the  husband  in  a  conveyance,  or  if 
the  husband  has  previously  sold  and"  conveyed  the  land,  the 
guardian  may  by  separate  deed  convey  such  right  of  dower  to 
the  husband's  grantee  or  grantees,  or  his  or  their  heirs  or 
assigns,  but  to  no  other  person. 

"Such  conveyance  shall  in  all  cases  be  as  effectual  to  bar 
the  right  of  dower  of  said  married  woman  as  if  she  had,  being 

4.     C.  L.  '15,  (12728);  Cummins       §851;   Howell,  2nd.  Ed.,  §10942. 
&  Beecher's  Mich.  Judicature  Act, 

102 


AW.\K1»  or    \lo\KY    IN   LIEU   OF  DOWER  §131 

ol  -"'mid  mind,  joined   her  husband  in  a  deed  of  such  prem- 
ises." 5 

§129.     Disposition  of  Fund. 

"Said  guardian  shall  apply  the  income  of  said  money  to  the 
support  of  said  married  woman,  or  allow  the  same  to  accmmi 
late,  as  the  court  shall  direct;  and  upon  the  restoration  of 
said  married  woman  to  a  sound  mind  shall,  upon  the  order  of 
the  court,  transfer  to  her  all  of  the  funds  in  his  hands,  and 
upon  her  death,  shall  deliver  the  same  to  her  husband,  if  he 
shall  he  living  at  her  death,  and  if  not  living,  then  to  her 
personal  representative.6 

§130.    Barring  Minor's  Dower. 

"Any  married  woman  residing  within  this  state,  having 
arrived  at  the  age  of  eighteeen  years,  may  bar  her  right  of 
dower  in  any  estate  conveyed  or  mortgaged  by  her  husband,  by 
joining  in  the  deed  of  conveyance  or  mortgage  and  acknowl- 
edging the  same  as  now  required  by  law  for  the  acknowledg- 
ments of  deeds,  and  may  do  any  other  act  concerning  her  rights 
in  lands  owned  by  her  husband  which  she  might  do  if  she  were 
twenty-one  years  of  age.7 

§131.    Award  of  Money  in  Lieu  of  Dower. 

In  any  suit  commenced  by  a  widow  for  the  recovery  of 
dower  in  lands  which  were  aliened  by  her  husband  in  his  life- 
time, and  where  her  dower  therein  cannot  be  set  off  by  metes 
and  bounds  without  injustice  or  manifest  injury  to  the  widow 
or  the  owners,  the  court  having  cognizance  of  the  case  may 
award  a  sum  of  money  in  lieu  of  dower  to  be  paid  to  the 
widow,  or  may  assign  to  her,  as  tenant  in  common,  a  just 
proportion  of  the  rents,  issues  and  profits  of  such  lands,  regard 
being  had  in  all  cases  to  the  true  value  of  the  lands  at  the 
time  of  sneh  alienation  by  the  husband,  and  of  the  probable 
duration  of  the  life  of  the  dowress,  at  the  time  such  money 
shall  be  adjudged,  or  such  rents,  issues  and  profits  shall  be 
awarded  to  her.8 

5.  C.  L.  '15.  (12729);  Cummins  7.     '15.    (11679);    Howell,    2nd. 
&  Beecher's  Mich.  Judicature  Act,       Ed.,  §10945. 

§852;   Howell,  2nd.  Ed..  $10943.  8.     C.  L. '15,  (12731);  Cummins 

6.  C.  L.  '15.  (12730) ;  Cummins  &  Beecher's  Mich.  Judicature  Act, 
&  Beecher's  Mich.  Judicature  Act,  §854;    Howell.    2nd.   Ed.,    $10946: 
§853;   Howell.  2nd.  Ed.,  §10944.  Rockwell    v.    Rockwell,    81    Mich. 

493,  46  N.  W.  8. 

103 


§132  BARRING   DOWER   OF   INSANE   PERSONS 

The  propriety  of  converting  into  money  such  property  as 
cannot  be  partitioned  is  recognized  by  statute.  The  estate  of 
a  doweress  may  be  so  commuted.9 

§132.    Dower  Claimed  by  Two  or  More  Widows. 

It  sometimes  happens  that  two  or  more  widows  claim  dower 
rights  in  the  same  land.  In  such  cases  the  statute  provides 
that  "when  dower  in  any  lands  shall  be  claimed  by  two  or 
more  widows,  the  one  whose  husband  was  first  seized  therein 
shall  be  first  entitled  thereto ;  and  in  all  cases  where  dower  in 
any  lands  shall  have  been  assigned,  or  where  it  shall  appear 
that  the  owner  or  owners,  or  the  person  or  persons  having  an 
interest  therein,  shall  have  made  full  satisfaction  to,  and  have 
obtained  a  discharge  from,  the  person  recovering  or  having  a 
prior  right  to  dower  therein,  by  reason  of  the  prior  seisin  of 
her  husband,  the  said  land  shall  not  be  subject  to  any  other 
claim  of  dower  during  the  lifetime  of  the  person  so  recovering 
or  who  has  received  satisfaction  and  given  a  discharge  as 
aforesaid."  10 

9.     Brown  v.  Bronson,  35  Mich.  148   Mich.    1,   108  N.   W.   1105. 

415.     A   husband   cannot  by   any  10.     C.  L.  '15,  (11687);  Howell, 

act    of    his    prejudice    his    wife's  2nd.  Ed.,  §10947. 
right  of  dower.     Chase  v.  Angel, 


104 


CHAPTER  XIV. 

HOMESTEAD  RIGHTS  OF  WIFE  OR  WIDOW. 

§133.  Constitution. 

§134.  What  Constitutes  Homestead. 

§135.  Object  of  Exemption. 

§136.  Land  Purchased  for  Homestead  ;-^Intention. 

§137.  Title  in  Fee  not  Necessary. 

§138.  Homestead  in  Land  Held   in   Joint  Tenancy    or    Tenancy    in 

Common. 

§139.  Homestead  Rights  as  against  Mechanic's  Lien. 

§140.  Alienation  of  Homestead. 

§141.  Abandonment  of  Homestead. 

§142.  Homestead  Exemption  to  Family  after  Death  of  Hushand. 

§143.  Homestead  Rights  of  Widow   when   Owner    Dies    Leaving    no 

Children. 

§133.     Constitution. 

A  mortgage  or  deed  of  a  homestead  of  a  married  man  is 
void  unless  signed  by  the  wife.1 

§134.    What  Constitutes  Homestead. 

Under  the  constitution  of  this  state  a  homestead  consists  of 
not  to  exceed  forty  acres  of  land  and  the  dwelling  house  there- 
on and  the  appurtenances,  to  be  selected  by  the  owner,  and 
not  included  in  any  town  plat,  city  or  village ;  or  instead  there- 
of, at  the  option  of  the  owner,  any  lot  in  any  city,  village  or 
recorded  town  plat,  or  such -part  of  lot  as  shall  be  equal 
theretoy-  and  the  dwelling  house  thereon  and  its  appurte- 
nances, owned  and  occupied  by  any  resident  of  the  state,  not 
exceeding  in  value  fifteen  hundred  dollars,  and  is  exempt  from 
forced  sale  on  execution  or  any  other  final  process  against  the 
owner.2 

§135.    Object  of  Exemption. 

The  object  of  the  homestead  exemption  is  not  only  for  the 
benefit  of  the  owner  but  that  of  his  wife  and  children  as  well.8 

1.  Const.  1908,  Art.  XIV,  Sec.  2.          3.    Beecher   v.    Baldy,   7   Mich. 

2.  Const.  1908,  Art.  XIV,  Sec.  2.       488;    Snyder  v.   People,   26   Mich., 

105 


§136  HOMESTEAD  RIGHTS  OP  WIFE  OR  WIDOW 

It  is  an  absolute  right,  and  not  a  mere  personal  privilege 
which,  to  be  effectual,  must  be  claimed.4 

Ownership  and  actual  occupancy  of  a  homestead  consisting 
of  separate  parcels  of  land  within  the  prescribed  quantity  and 
value  is  a  sufficient  selection  to  secure  the  exemption.5 

A  homestead  upon  unplatted  land  in  a  village  is  not  limited 
to  the  quantity  in  a  lot  of  the  usual  size  in  the  platted  part.6 

The  fee  of  the  land  is  not  exempted  as  a  homestead,  but  the 
constitution  prohibits  the  land  being  sold  on  execution  or 
other  final  process  against  the  owner  while  it  is  occupied  as  a 
homestead.7 

§136.    Land  Purchased  for  Homestead;  Intention. 

A  city  lot  purchased  bjr  a  single  man  in  contemplation  of 
his  marriage  and  with  the  intention  of  making  it  a  homestead, 
will  be  exempt  as  such  from  levy  and  sale  on  execution  even 
before  any  dwelling  house  is  erected  on  it  if  the  man  is 
subsequently  married  and  he  and  his  wife  have  enclosed,  im- 
proved and  used  it  with  the  constant  purpose  of -making  it 
their  home,  as  soon  as  their  means  will  permit.8 

A  vacant  unimproved  lot  with  no  dwelling  house  thereon  may 
be  exempt  from  levy  and  sale  on  execution  if  it  was  purchased 
with  the  intention  of  making  a  homestead  for  the  purchaser 
if  he  encloses  and  occupies  it  and  uses  it  with  the  constant  in- 
tention of  making  it  his  home,  and  uses  such  means  as  he  can 
procure  within  a  reasonable  time  to  erect  a  house  thereon  for 
his  family,  provided  it  does  not  exceed  in  quantity  and  value 
the  constitutional  limit.  In  such  case  the  lot  would  be  ex- 
empt from  the  date  of  the  purchase.9 

But  a  widow,  having  only  married  children,  and  no  means 

106;     Comstock    v.    Comstock,    27  232.. 

Mich.  97;   Dye  v.  Mann,  10  Mich.  8?     Reske   v.    Reske,     51    Mich. 

291;  King  v.  Moore,  10  Mich.  538.  541,  16  N.  W.  887. 

4.  McKee   v.  Wilcox,   11   Mich.  9.     Deville  v.  Widow,  64  Mich. 
358;    Riggs   v.   Sterling,   60  yMich.  593,   31    N.    W.    533;     Barber    v. 
G50,    27    N.    W.    705;    Stanton    v.  Rorabeck,    36    Mich.    399,    Bouch- 
Hitchcock,  64  Mich.  325,  31  N.  W.  afd   v.    Bourassa,    57   Mich.    8,    23 
395.  N.  W.  452;    Griffin  v.  Nichols,  51 

5.  Beecher    v.    Baldy,    7    Mich.  Mich.  575,  17  N.  W.  63;   Schofield 
488;    Thomas    v.    Dodge,    8    Mich.  v.  Hopkins,   61  Wis.  3,  70,  21  N. 
51.  W.  259;   Mills  v.  Hobbs,  76  Mich. 

6.  Barber     v.      Rorabeck,      36  122,   42   N.   W.   1084;    Jossman  v. 
Mich.  399.  Rice,  121  Mich.  270,  80  N.  W.  25. 

7.  Drake    v.    Kinsel,    38    Mich. 

106 


TITLE    IN     FKK    NOT    NECESSARY  §137 

with  which  to  build  a  house,  or  prospect  of  any,  cannot  claim 
homestead  right  in  a  vacant  lot  which  she  has  owned  for  up- 
wards of  three  years,  and  occupied  only  by  making  garden 
therein.  Intention  without  occupancy  cannot  create  a  home- 
stead or  raise  homestead  rights.  The  constitution  requires 
both  occupancy  and  intention.10 

§137.     Title  in  Fee  not  Necessary. 

A  title  in  fee  is  not  necessary  to  entitle  an  occupant  of  land 
to  a  homestead  therein.  An  owner,  within  the  meaning  of  the 
exemption  law.  is  anyone  who  has  an  interest  in  and  occupies 
the  premises  as  his  home.11 

The  exemption  extends  to  an  equitable  interest,  not  with- 
standing'the  legal  title  may  be  in  another,12  and  to  a,  building 
occupied  as  a  homestead  located  on  land  of  which  the  occu- 
pant of  the  building  is  not  the  owner.18 

A  homestead  is  protected  in  land  occupied  under  a  contract 
to  purchase,  or  under  a  lease.14 

The  law  only  exempts  the  homestead  from  sale  on  execution, 
or  from  private  sale  without  the  concurrence  of  the  wife,  arid 
does  not  divest  the  right  of  the  owner  of  the  land,  nor  impair 
any  remedy  which  the  law  gives  him.15 

A  homestead  is  protected  against  the  claims  of  creditors  of 
the  person  who  is  entitled  to  occupy  it  as  a  homestead,  and 
while  it  is  actually  occupied  as  his  home,  but  it  does  not  pro- 
tect the  person  in  possession  of  such  home  against  the  rights 
of  the  owner  of  the  land.  A  married  woman  may  convey  land 
owned  by  her  in  fee,  but  occupied  by  herself  and  husband  as 
a  homestead,  without  his  joining  in  the  deed  of  conveyance, 
and  when  that  is  <16ne,  the  homestead  right  is  extinguished 
as  against  the  wife's  grantee.16  But  when  a  husband  and  wife 
are  jointly  in  possession  of  a  homestead  in  land  owned  by  the 

10.  Ware    v.    Hall,    138    Mich.  Bevard,  13   Iowa  63;    Conklin   v. 
70,  101  N.  W.  47.  Foster,   57    111.    104;     Johnson    v. 

11.  Lozo    v.    Southerland,    38  Richardson,  33  Miss.  462;  Thomp- 
Mich.   168;   McKee  v.  Wilcox,  11  son,  Homestead.  Sec.  176;  Smyth, 
Mich.  358.  Homestead,  Sec.  117. 

12.  Orr  v.  Shraft,  22  Mich.  260.  15.    Matta  v.  Kippola,  102  Mich. 

13.  Bunker     v.     Paquette,     37  118,  60   N.  W.  300;    Buckingham 
Mich.  79.  v.    Buckingham,   81   Mich.    89,   45 

14.  McKee  v.  Wilcox,  11  Mich.  N.  W.  504. 

358;  Matta  v.  Kippola,  102  Mich.  16.  Buckingham  v.  Bucking- 
116,  60  N.  W.  300;  Pelan  v.  De-  ham,  81  Mich.  89,  45  N.  W.  504. 

107 


§138  HOMESTEAD    RIGHTS   OF    WIFE    OR    WIDOW 

wife,  the  husband  has  a  right  to  complain  of  any  unlawful  in- 
terference with  his  homestead  rights  therein.17 

§138.     Homestead  in  Land  Held  in  Joint  Tenancy  or  Tenancy  in 
Common. 

The  constitution  and  statutes  of  this  state  have  always  been 
liberally  construed  as  to  homestead  rights.  The  law  does  not 
require  that  the  person  who  claims  certain  premises  as  a  home- 
stead should  own  the  entire  title.  The  word  "owner"  as  used 
in  the.  constitution  and  statute  relating  to  homestead  rights 
has  generally  been  construed  to  include  any  and  all  parties 
who  have  a  claim  or  interest  in  the  property,  occupied  by 
them  as  their  home,  although  such  claim  or  interest  may  be 
an  undivided  one  or  fall  far  short1  of  an  absolute  ownership. 
Thus,  a  homestead  right  may  exist  in  land  occupied  and  held 
in  joint  tenancy,  or  by  husband  and  wife  as.  tenants  by  en- 
tireties.18 So,  under  the  homestead  laws  of  this  and  other 
states,  it  is  held  that  one  who  occupies  land  as  tenant  in  com- 
mon with  others  may  have  a  homestead  right  therein  which 
will  be  protected  as  against  claims  of  creditors.19 

A  farm  homestead  right 'cannot  be  changed  or  put  in  jeop- 
ardy by  the  extension  of  village  or  city  limits  so  as  to  bring 
such  farm  property  within  the  limits  of  such  city  or  village.20 

The  homestead  exemption  from  levy  and  sale  on  execution 
IF  an  exemption  of  an  entirety,  although  a  homestead  may  also 
be  claimed  in  lands  held  in  -joint  tenancy,  or  by  tenancy  in 
common  not  exceeding  the  homestead  limitation  in  quantity.21 

A  temporary  removal  from  a  homestead  with  the  intention 
of  a  speedy  return  does  not  constitute  an  abandonment  of 
homestead  rights.22 

17.  Rome  v.  Kellogg,  54  Mich.  rence  v.  Morse,   122  Mich.  27,  80 
209,   19   N.  W.   957.  N.  W.  1087. 

18.  Lozo    v.     Southerland,     38  20.     Barber     v.     Rorabeck,     36 
Mich.    168;    Thomas   v.    Robinson,  Mich.  401. 

43   Mich.   502,  5  N.  W.  988;    Cole  21.     Amphlett     v.     Hibbard,    29 

v.  Cole,  126  Mich.  571,  85  N.  W.  Mich.   298;    Thorp,    v.    Allen,     46 

1098.  Mich.  392,  9  N.  W.  443. 

19.  Lozo     v.     Southerland,    38  22.     Burkhardt    v.    Walker,   132 
Mich.  172;  McCleary  v.  Bixby,  36  Mich.   95,   92  N.  W.   778;    Bunker 
Vt.  257;  Thorn  v.  Thorn,  14  Iowa  v.    Paquette,    37    Mich.    79;    Kaed- 
49;    Horn  v.  Teft,   39   N.  H.   478;  ing    v.    Joachimstachl,    98    Mich. 
Cleaver  v.  Bigelow,   61  Mich.   53,  78,   56  N.  W.   1101;   Hitchcock  v. 
27  N.  W.  85;   King  v.  Wilson,  83  Misner,   111  Mich.   180,   69  N.  W. 
Mich.    197,    47    N.    W.    106;    Law-  226. 

108 


Mi-:riiA\i.-'s   I.IKN  §i:5!t 

While  property  is  occupied  as  a  homestead  there  is  no  in- 
terest which  can  be  taken  and  sold  :is  against  the  owner.  The 
fee  in  land  occupied  as  a  homestead  cannot  be  sold  on  an  ex- 
ecution against  Jhe  owner.23 

§139.     Homestead  Rights  as  against  Mechanic's  Lien. 

A  homestead  is  protected  against  a  mechanic's  lien  or  a  lien 
for  materials  furnished  for  a  building  erected  thereon,  unless 
the  agreement  for  its  erection  is  in  writing  and  describes  the 
premises,  and  is  signed  by  the  owner,  and  by  his  wife  if  he  is 
a.  married  man.24 

The  statute  in  relation  to  liens  of  mechanics  and  others  pro- 
vides that  if  the  title  to  the  land  against  which  a  lien  is 
sought  to  be  established  for  buildings  erected  or  improvements 
made  thereon,  or  labor  or  material  furnished  for  the  same,  is 
held  by  husband  and  wife  jointly,  or  is  held  and  occupied  as  a 
homostead,  the  lien  provided  for  by  the  act  shall  attach  to  such 
land  and  improvement  if  the  improvements  be  made  in  pursu- 
ance of  a  contract  in  writing  signed  by  both  the  husband  and 
the  wife.25 

The  right  to  obtain  a  lien  on  real  estate  for  labor  or  ma- 
terials furnished  is  purely  a  statutory  one.  Tt  is  in  deroga- 
tion of  the  common  law.  and  the  essential  requirements  of  the 
statute  must  be  observed.20 

The  statute  permits  a  lien  on  land  owiied  by  husband  and 
wife  jointly,  or  occupied  and  held  by  them  as  a  homestead. 
only  when  the  improvements  for  which  a  lien  is  sought  to  be 
established  are  made  in  pursuance  of  a  written  conn-act  signed 
by  both  <>f  them.  This  written  contract  and  the  signature  of 
both  husband  and  wife  are  essential  requirements  of  the  law. 
which  must  be  complied  with  in  order  to  establish  a  lien  in 
such  cases.27 

23.  Burkhardt   v.   Walker,   132       2nd.  Ed.,  §13767. 

Mich.  93,  95,  92  N.  W.  778;   Lozo  \26.     Hall   v.    Erkfitz,    125  Mich, 

v.     Southerland,    38    Mich.     168;  355,  84  N.  W.  310;  Wager  v.  Bris- 

Myers  v.  Weaver,  101  Mich.  477,  coe,     38     Mich.     587;     Knapp     v. 

59  N.  W.  810;   Hitchcock  v.  Mis-  Swaney.   56   Mich.   345,   23  N.  W. 

ner,  11  Mich.  180,  69  N.  W.  226.  162;     Sheridan    v.    Cameron,     65 

24.  Hammond     v.     Wells,      45  Mich.  580,  32  N.  W.  894;  Lindsay 
Mich.  11,  7  N.  W.  218;   Burtch  v.  v.   Huth,   74  Mich.  712.  42  N.  W. 
McGibbons,    98   Mich.    190,   56    N.  358;    Electric   Co.   v.    Morris,   100 
W.  1110.  Mich.  502,  59  N.  W.  151. 

25.  C  L.  '15,   (14797);   Howell.  27.     Frolich     v.     Carroll,      127 

109 


§140 


HOMESTEAD   RIGHTS    OF    WIFE   OR   WIDOW 


§140.    Alienation  of  Homestead. 

Any  deed,  release  or  mortgage  (except  a  mortgage  given  for 
purchase  money  of  the  land)  of  a  homestead  given  by  a  mar- 
ried man  without  the  signature  of  his  wife  is  yoid  as  to  both.28 

A  deed  or  mortgage  given  by  a  husband  of  his  homestead, 
without  his  wife's  signature,  being  absolutely  void,  a  subse- 
quent removing  or  ending  of  the  exemption,  by  removal  from 
^the  homestead  land  and  ceasing  to  occupy  it  as  a  home,  or  a 
subsequent  deed  by  both  husband  and  wife,  will  not  revive  the 
deed  given  by  the  husband  alone  or  make  it  valid  or  effective.29 
But  where  the  exempted  land  is  a  part  of  a  larger  tra£t  in- 
cluded in  the  husband's  conveyance  the  deed  is  good  as  to  the 
excess  or  residue.30 

A  husband's  sole  deed  of  a  homestead  is  not  made  good  by 
giving  possession  to  the  purchaser,  but  if  it  covers  more  land 
than  that  exempted  by  law  it  will  be  good  as  to  the  excess.31 

• 
§141.    Abandonment  of  Homestead. 

A  homestead  is  not  abandoned  by  the  mere  absence  of  the 


Mich.  561,  86  N.  W.  1034;  Bauer 
v.  Long,  147  Mich.  351,  110  N.  W. 
1059;  Lumber  Co.  v.  Wyrembol- 
ski,  164  Mich.  71,  128  N.  W.  1083; 
Frolich  v.  Blackstock,  155  Mich. 
604,  119  N.  W.  906;  Sheldon  v. 
Brewer,  166  Mich.  578,  132  N.  W. 
117;  Jossman  v.  Rice,  121  Mich. 
270,  80  N.  W.  25;  Halladay  v. 
Mathewson,  146  Mich.  336,  109 
N.  W.  669. 

28.  Dye  v.  Mann,  10  Mich.  291; 
McKee  v.   Wilcox,   11   Mich.   358; 
Ring     v.     Burt,     17     Mich.     465; 
Fisher  v.  Meister,  24   Mich.   447; 
Spyder   v.   People,.  26   Mich.    106; 
Comstock    v.    Comstock,    27   Mich. 
97;    Wallace   v.    Harris,    32   Mich. 

0;      Amphlett     v.    Hibbard,    29. 

ich.  298;  Phillips  v.  Stauch,  20 
Mich.  369;  Watertown  Ins.  Co.  v. 
G.  &  B.  S.  M.  Co.,  41  Mich.  131; 
Sherrid  v.  Southwick,  43  Mich. 
515,  5  N.  W.  1070;  Matta  v.  Kip- 
poli,  102  Mich.  116,  60  N.  W.  300. 

29.  Oye  v.  Mann,  10  Mich.  291; 
Amphlet    v.    Hibbard,    29    Mich. 


298. 

30.  Dye  v.  Mann,  10  Mich.  291; 
Wallace  v.  Harris,  32  Mich.  380; 
Stevenson    v.    Jackson,    40    Mich. 
702;     Hanchett    v.    McQueen,    32 
Mich.   22;    Griffin   v.    Johnson,  37 
Mich.  87;   Smith    v.    Rumsev,    33 
Mich.  183;   Cooper  v.  Coopef,  162 
Mich.  304,  127  N.  W.  266. 

31.  Phillips  v.  Stauch,  20  Mich. 
369";     Stevenson    v.    Jackson,     40 
Mich.  702.     The  conveyance  of  a 
homestead  by  a  debtor  to  his  wife 
or  others,  althbugh   without  con- 
sideration, will  not  subject    it   to 
execution.     Smith  v.  Rumsey,  33 
Mich.  183;  Matson  v.  Melchor,  42 
Mich.  474,   4  N.  W.  200;   Patnode 
v.   D'arveau,  112  Mich.   127,  70  N. 
W.  439,  71   N.  W.  1095;   Eagle  v. 
Smilie,   126   Mich.    612,   85   N.  W. 
1111.     These  cases  in  effect  over- 
rule the  case  of    Herschveldt    v. 
George,  6  Mich.  456. 

32.  Chamberlain     v.     Lyell,     3 
Mich.  448. 

33.  Beecher  v.  Baldey,  7  Mich. 


110 


OWNER  DIES  I.KAVIM;  NO  CIULDKKN  ill:1, 

owner  from  the  state  when  his  wife  continues  to  occupy  1 1n- 
borne  and  the  husband  has  not  acquired  an  independent  home- 
stead elsewhere.33 

The  owner  of  a  homestead  cannot  hold  homestead  rights  in 
a  house  and  lot  from  which  he  has  removed  with  his  family. 
and  to  which  he  has  no  definite  intention  of  returning. 

§142.     Homestead  Exemption  to  Family  after  Death  of  Husband. 

The  const  it  ul  ion  also  exempts  a  homestead  from  the  pay- 
ment of  the  debts  of  the  deceased  owner  in  all  cases  during  the 
minority  of  his  children.37 

The  fee  is  not  exempt,  but  the  land  only,  while  it  is  occupied 
as  a  homestead  by  the  widow  and  minor  children.  Subject  to 
homestead  rights  the  lands  are  assets  when  needed  to  pay  the 
debts  of  the  estate.38 

§143.     Homestead  Rights  of  Widow  when  Owner  Dies  Leaving 
no  Children. 

If  the  owner  of  the  homestead  die,  leaving  a  widow  but  no 
children,  such  homestead  shall  be  exempt,  and  the  rent  and 
profits  thereof  shall  accrue  to  her  benefit  during  the  time  ol 
her  widowhood,  unless  she  be  the  owner  of  a  homestead  in  her 
own  right.89 

487;   Penniman  v.  Pierce,  9  Mich.  193,    81    N.    W.    916;    Hoffman   v. 

509;   Dye  v.  Mann,  10  Mich.  291;  Busthman,   95   Mich.   538,    55    N. 

Dyson  v.  Sheely,  11  Mich.  527;  W.  458.     A  lease  of  a  homestead 

34.  Penniman      v.      Pierce,      9  and   other  real  property  of  such 
Mich.    509,    528.      A    lease    of    a  a  nature  as   to  exclude  the   wife 
homestead,  the  title  to  which  is  of  possession  of  the  homestead  is 
in  the  husband,  is  valid  if  signed  void  without  her  signature.    Mail- 
by    both    husband    and    wife    al-  hot  v.  Turner,  157  Mich.  167,  121 
though     the     husband     only     Is  N.  W.  804;  Township  of  Jasper  v. 
named  in  the  body  of  the  instru-  Martin,  161  Mich.  336,  126  N.  W. 
ment.        Barrett      v.     Scott,     112  473. 

Mich.  220,  70  N.  W.  1038.  37.    Constitution  1908,  Art.  XIV, 

35.  Gadsey     v.     Monroe,      115  Sec.    3;    Zoellner   v.    Zoellner,    53 
Mich.  282,  73  N.  W.  367.     An  at-  Mich.    625,    19   N.   W.    556;    Riggs 
tempted  conveyance    of    a    home-  v   Sterling,  60  Mich.  650,  27  N.  W. 
stead   by  a   husband  without  the  705;   Robinson  v.  Baker,  47  Mich, 
wife's   signature,   though   express-  621,  11  N.  W.   410. 

ly   made   subject  to  a  life  estate  38.     Drake  v.   Kinsel,   38   Mich, 

previously  conveyed  to  the   wife,  232;     Showers    v.     Robinson,    43 

is  void.     Gadsey   v.   Monroe,   115  Mich.  502,  5  N.  W.  988. 

Mich.  282,  73  N.  W.  367.  39.     Constitution      1908,       Art. 

36.  Smith  v.  Kidd,    123    Mich.  XIV,  Sec.  4. 

Ill 


§143 


HOMESTEAD    RIGHTS    OP    WIPE    OR    WIDOW 


Upon  the  death  of  children  left  by  the  husband,  the  widow 
stands  in  the  same  situation  as  if  no  child  had  been  left  alive. 
But  a  widow  whose  child  dies  after  her  husband  and  who 
marries  again  loses  the  homestead  right  acquired  through  her 
former  husband,  though  she  retains  her  dower.40 

Where  a  widow  without  children  elects  to  take  under  the 
will  which  provides  for  a  sale  of  the  real  estate  and  a  pay- 
ment to  her  in  cash  in  lieu  of  dower,  she  is  still  entitled  to 
the  homestead  interest  granted  by  the  constitution.  Her 
election  to  take  under  the  will  and  her  receipt  of  the  proceeds 
of  the  sale  do  not  bar  her  homestead  rights  nor  estop  her  from 
claiming  the  same.41 

Although  a  widow  whose  child  dies  after  her  husband  loses 
her  homestead  rights  acquired  .through  her-  former  husband 
when  she  marries  again,  she  retains  her  dower.  Her  second 
marriage  ends  her  widowhood  and  with  it  all  rights  to  the 
homestead.42 


40.  Dei\v.  Habel,  41  Mich.  88, 
1  N.  W.  964. 

41.  Koster  v.  Vellen,  124  Mich. 
149,  82  N.  W.  823.     A  homestead 
exemption    is    an    absolute    right 
and  not  a  mere  personal  privilege 
to  the  owner.    Hence  creditors  of 
a  decedent  cannot  complain  of  a 
voluntary  conveyance  of  his  home- 
stead   by    the    owner    during   his 
last    sickness,    even    although    he 
left    neither    wife    nor    children 
surviving  him.     Eagle  v.  Smylie, 
126  Mich.   612,    85    N.    W.    1111; 
Farrand   v.   Caton,   69   Mich.   243, 


37  N.  W.  203;  Anderson  v.  Odell, 
51  Mich.  492,  16  N.  W.  870; 
Rhead  v.  Hounson,  46  Mich.  243, 
9  N.  W.  267;  Pult  v.  Gellen,  47 
Mich.  570,  11  N.  W.  385;  Ver- 
mont Sav.  Bank  ,v.  Elliott,  53 
Mich.  256,  18  N.  W.  805;  Armi- 
tage  v.  Toll,  64  Mich.  412,  31  N. 
W.  408;  Toll  v.  Davenport,  74 
Mich.  386,  42  N.  W.  63;  Cullen  v. 
Harris,  111  Mich.  20,  69  N.  W.  78, 
66  Am.  St.  R.  380. 

42.     Dei  v.  Hable,  41  Mich.   88, 
1  N.  W.  964. 


112 


CHAPTER  XV.       . 

STATUTORY    PROVISIONS    IN    RELATION    TO    HOME 
STEAD  RIGHTS. 

§144.  In  General. 

§145.  Statutory  Definitions  and  Exemptions. 

§146.  Mortgage  Lawfully  Obtained. 

§147.  Selection  of  Homestead  when  Levy  of  Execution  is  Made. 

§148.  When  Officer  to  Make  Survey. 

§149.  How  Sale  Made  after  Survey. 

§150.  House  on  Lafld  of  Another: — Not  Exempt  from  Sale  for  Taxes. 

§151.  Appraisal   and   Notice  when   Homestead  Exceeds   Fifteen   Hun- 
dred Dollars  in  Value. 

§152.  How  Homestead  Advertised  and  Sold  for  Surplus. 

§144.    In  General. 

As  shown  in  the  last  chapter,  the  constitution  defines  the 
homestead  aiid  prescribes  the  extent  and  value  of  property 
which  may  be  claimed  as  exempt  by  the  owner,  and  the  right 
and  interest  of  the  wife  and  family,  the  widow  and  minor 
children  of  the  deceased  only. 

The  statutory  homestead  exemption  as  prescribed  by  the 
legislature  is  the  same  as  that  provided  by  the  constitution. 

It  would  not  be  competent  for  the  legislature  to  add  to  or 
take  from  the  limitations  of  the  constitution  in  regard  to  the 
amount  or  value  of  the  homestead  exemption.  Nor  can  the 
legislature  change  or  modify  the  constitutional  provisions  as 
to  the  time  and  the  conditions  under  which  the  homestead 
exemptions  may  exist 

§145.     Statutory  Definitions  and  Exemptions. 

The  statutory  provisions  defining  a  homestead  and  exempt- 
ing the  same  from  levy  and  sale  on  execution  or  other  final 
process  are  as  follows :  "A  homestead  consisting  of  any  quan- 
tity of  land  not  exceeding  forty  acres,  and  a  dwelling  house 
thereon  and  its  appurtenances,  to  be  selected  by  the  owner 
thereof,  and  not  included  in  any  recorded  town  plat,  city  or 
village,  or  instead  thereof,  at  the  option  of  the  owner,  a  quan- 
tity of  land  not  exceeding  in  amount  one  lot,  being  within  a 

113 


§145  STATUTORY    PROVISIONS 

recorded  town  plat,  city  or  village,  and  a  dwelling  house 
thereon  and  its  appurtenances  owned  and  occupied  by  any 
resident  of  this  state,  shall  not  be  subject  to  forced  sale  on 
execution  or  any  other  final  process  from  a  court,  for  any  debt 
or  debts  growing  out  of  or  founded  upon  contract  either  ex- 
pressed or  implied  made  after  the  third  day  of  July,  A.  D. 
1848.  This  section  shall  be  deemed  and  construed  to  exempt 
such  homestead  in  the  manner  aforesaid  during  the  time  it 
shall  be  occupied  by  the  widow  or  minor  child  or  children  of 
any  deceased  person,  who  was  when  living  entitled  to  the 
benefit  of  this  act."1 

The  same  owner  cannot  have  two  homesteads  at  the  same 
time,  nor  can  a  homestead  right  exist  in  two  distinct  places.2 

The  selection  of  a  homestead  need  not  be  in  writing,  nor  is  it 
necessary  that  any  other  particular  formality  be  gone,  into  in 
order  to  fix  and  preserve  the  rights  of  the  owner  and  his 
family. 

The  occupancy  of  the  land  by  placing  a  dwelling  house 
thereon  and  living  in  it,  making  the  home  there,  is  sufficient  of 
itself  to  declare  it  a  homestead,  and  is  notice  to  everyone  of  its 
selection.3 

Actual  residence  on  the  land  intended  for  a  homestead  is 
not  necessary  to  its  exemption  as  such  if  there  is  such  occu- 
pancy by  the  owner  for  such  purposes  as  are  usually  employed 
in  a  home,  coupled  with  ~bona  fide  intention  of  the  owner  to 
make  a  home  of  the  land.4 

Temporary  absence  will  not  cut  off  homestead  rights,  nor 
will  the  fact  that  the  owner's  wife  does  not  live  with  him  on 
the  land  deprive  him  of  homestead  rights.  Nor  will  the  fact 
that  the  owner's  wife  has  abandoned  him  and  is  seeking  a 
divorce  deprive  him  of  his  homestead  exemption.5 
•  Eemoval  of  the  ow^ier  to  his  father's  home  on  account  of  the 
father's  ill  health,  and  the  acceptance  of  a  deed  of  another 

1.  C.  L.  '15,  (12888) ;  Cummins          4.     Bowles   v.   Hord,    71    Mich. 
&  Beecher's  Mich.  Judicature  Act,  160,  39  N.  W.  24;  Reske  v.  Reske, 
§1011;   Howell,  2nd  Ed.,  §13072.  51  Mich.   541,   16  N.  W.   895;    De- 

2.  Wheeler  v.  Smith,  62  Mich.  ville  v.  Widoe,   64   Mich.   593,   31 
373,   28    N.   W.    907;    L.   A.   Plant  N.    W.    533;    Mills    v.    Hobbs,    76 
v.   Lester,   150  Mich.    336,   113   N.  Mich.   129,   42   N.  W.   1084;    Karn 
W.  1115.  v.  Hanson,  59  Mich.  380,  26  N.  W. 

3.  Riggs  v.   Sterling,   60   Mich.  666. 

643,   27   N.   W.   705;    Evans  v.  V.          5.     Earle  v.  Earle,  60  Mich.  30, 
R.    L.   &    D.    R.    R.    Co.,    68    Miph.       26  N.  W.   822. 
609,  36- N.  W.  687. 

114 


MORTGAl.K    I..V\VI  IM.I.Y   OBTAINKM  §146 

home,  will  not  constitute  .-in  abandonment  of  the  homestead 

it    ii    is  tin-   intention  of  the  owner  to  return  and  not  aban- 
don it: 

§146.     Mortgage  Lawfully  Obtained. 

The  homestead  exemption  docs  not  extend  to  any  mortgage 
thereon  lawfully  obtained,  but  any  mortgage  or  other  aliena- 
tion of  the  homestead  by  the  owner  thereof,  if  a  married  man, 
,is  void  without  the  signature  of  the  wife  to  the  same,  unless 
sueh  .mortgage  shall  be  given  to  secure  the  purchase  money  of  ' 
the  land  or  some  part  thereof.7 

Where  a  mortgage  has  been  executed  by  husband  and  wife, 
by  an  imperfect  description  of  the  homestead,  it  may  bo.  cor- 
rected like  any  other  conveyance,  and  will  not  be  postponed  to 
an  attachment  or  execution  levy.  When  the  husband  and  wife 
have  executed  a  mortgage  which  was  meant  to  cover  their 
homestead,  they  have  bound  the  homestead  if  the  description 
is  no)  so  defective  as  to  make  it  beyond  the  power  of  the  court 
to  identify  the  property  intended  to  be  covered  by  the  mort- 
gage.8 

A  conveyance  or  mortgage  of  a  homestead  without  the  wife's 
signature,  being  void  when  executed,  will  uot.be  made  Valid  by 
the  husband  and  wife  removing  from  and  abandoning  the 
homestead  premises,0  and  a  subsequent  joint  conveyance  by  the 
husband  and  wife  will  stand  as  against  the  former  conveyance 
by  the  husband  alone.10 

Nor  will  the  subsequent  death  of  the  wife  make  valid  that 
which  was  void  before." 

When  the  homestead  is  incapable  of  division,  and  is  worth 
more  th'an  fifteen  hundred  dollars,  that  amount  of  its  value, 
over  and  above  all  prior  mortgages  thereon,  is  exempt,  and 
this  interest  may  be  mortgaged  or  conveyed  by  the  owner  and 
his  wife,  if  he  is  married,  and  such  mortgage  or  conveyance  to 
the  amount  of  fifteen  hundred  dollars  will  take  priority' over 
any  previous  levies  thereon.12 

6.  Hitchcock    v.    Misner,    111      369. 

Mich.  180,  69  N.  W.  226.  10.     Dye  v.  Mann,  10  Mich.  291; 

7.  C.  L. '15,  (12889);  Cummins       Amphlett    v.    Hibbard,    29    Mich. 
&  Beecher's  Mich.  Judicature  Act,       298, 

§1012;  Howell,  2nd.  Ed..  §13073.  11.     Shumacher    v.    Collins,    49 

8.  Byschlay     v.     Wagoner,    46       Mich.  597,  14  N.  W.  559. 

Mich.  90,  8  N.  W.  693;  Stevenson  12.     Vermont  Sav.   Bank  v.  El- 

v.   Kurtz,  98  Mich.  494,  57  N.  W.  liott,  63  Mich.  256,  18  N.  W.  805; 

580.  Lozo  v.  Sutherland,  38  Mich.  168. 

9.  Phelps  v.   Stanch,  20  Mich. 

115 


§147  STATUTORY    PROVISIONS 

The  right  of  homestead  of  minor  children  of  their  deceased 
father,  cannot  be  defeated  by  the  act  of  their  mother.  She  can 
neither  abandon  or  convey  it  away  so  as  to  cut  off  the  home- 
stead rights  of  the  minor  children.13 

The  assignment  of  a  land  contract  constituting  a  homestead 
by  the  husband  without  the  signature  of  the  wife  is  void;  but 
where  it  appears  that  the  failure  of  the  wife  to  execute  such 
assignment  was  due  to  advice  that  it  was  not  necessary,  and 
that  she  voluntarily  abandoned  such  homestead  for  another, 
and  defendant  had  in  good  faith  made  valuable  improvements 
thereon  and  incumbered  the  property,  she  is  estopped  by  her 
conduct  to  assert  such  rights  in  a  court  of  equity.14 

A  conveyance  of  her  homestead  rights  by  a  wife  separate 
from  her  husband,  pursuant  to  an  oral  agreement  of  her  hus- 
band to  convey,  is  ineffectual.15 

§147.     Selection  of  Homestead  when  Levy  of  Execution  is  Made. 

The  statute  permits  a  levy  of  execution  on  land,  a  portion  of 
which  is  occupied  as  a  homestead,  and  a  foreclosure  and  sale 
on  a  mortgage  where  the  mortgage  is  void  as  to  the  homestead 
and  valid  as  to  the  residue  of  the  land  covered  by  the  mortgage, 
and  makes  provisions  for  selection,  by  the  owner,  of  the  home- 
stead which  is  exempt.  The  statute  provides :  "That  whenever 
a  levy  shall  be  made  upon,  or  a  circuit  court  commissioner  shall 
advertise  for  sale  under  any  decree  upon  the  foreclosure  of  any 
mortgage  not  valid  as  against  a  homestead,  and  so  stated  in 
such  decree,  the  lands  and  tenement  of  the  householder  whose 
homestead  has  not  been  platted  and  set  apart  by  metes  and 
bounds,  such  householder  shall  notify  the  officer  at  the  time  of 
making  such  levy,  or  at  the  time  of  such  advertising  for  sale, 
what  he  regards  as  his  homestead,  with  a  description  thereof, 
within  the  limit  above  described,  and  the  remainder  alone  shall 
be  subject  to  sale  under  such  levy  or  decree.  If  at  the  time  of 
such  levy  or  advertising  for  sale  such  householder  shall  fail  or 
neglect  to  notify  the  officer  making  the  levy  or  advertising  such 
property  for  sale,  what  lie  regards  as  his  homestead,  with  a 
description  thereof,  the  officer  making  the  levy  or  advertising 
such  property  for  sale  shall  call  upon  such  householder  to  make 

13.     Gerber  v.  Upton,  123  Mich.  Am.  St.  R.  554. 

607,   82    N.   W.    363;     Showers    v.  14.     Bovine  v.  Selden,  155  Mich. 

Robinson,  43  Mich.  502,  513,  5  N.  556,  119  N.  W.  1090. 

W.    988;    Riggs     v.     Sterling,     60  15.     Lott     v.     Lott,     146     Mich. 

Mich.   643,  652,   27   N.  W.    705;    1  580,    109    N.    W.    1049,   Hooker   & 

116 


ft'HEN    OFFICER   TO    MAKE    SURVEY 

the  selection  of  a  homestead  out  of  said  land,  describing  the 
same  minutely.  If  after  such  notice  the  owner  of  the  land 
shall  fail  to  select  his  homestead,  such  pfficer  may  select  a 
homestead  out  of  said  land  for' him,  and  the  remainder  over1 
and  above  that  part  selected  by  the  officer  or  by  the  owner  of 
the  land.  ;is  the  case  may  be,  alone  shall  be  subject  to  sale 
under  such  levy  or  decree:  Provided,  that  in  making  the  selec- 
tion of  the  homestead  out  of  the  land  levied  upon  or  advertiser! 
for  sale,  if  such  selection  is  made  by  the  officer  making  the/  low 
or  advertising  for  sale,  he  shall  select  land  in  compact  form, 
which  land  so  selected  by  him  as  the  homestead  of  the  owner 
shall  include  the  dwelling  house  and  its  appurtenances 
thereon."10 

The  homestead  right  of  an  execution  defendant  is  not  for- 
feited by  his  omission  to  select  a  homestead,  if,  being  within 
reach,  lie  is  not  actually  notified  of  the  levy  or  of  the  proceed- 
ings thereunder,  and  therefore  does  not  know  of  any  occasion 
to  make  a  selection.17 

§148.    When  Officer  to  Make  Survey. 

If  the  plaint  ill  in  an  execution,  or  the  complainant  in  a  fore- 
closure decree,  shall  lie  dissatisfied  with  the  quantity  of  land 
selected  and  set  apart  as  a  homestead,  either  by  the  owner  of 
the  land  or  by  the  otticer  making  the  levy  or  advertising  the 
land  for  sale,  he  shall  cause  the  land  to  be  surveyed,  beginning 
at  a  point  to  be  designated  by  the  owner  or  by  the  officer  mak- 

Grant,  JJ.  dissenting.  A  wife's  Mich.  560,  11  N.  W.  385. 
signature  to  a  direction  to  a  But  the  conveyance  of  the  re- 
vendor  of  premises  by  contract,  mainder  after  the  homestead 
to  convey  the  premises  to  another,  ceases  is  not  a  conveyance  of  the 
cuts  off  her  homestead  rights  homestead,  and  if  done  to  defraud 
under  the  contract.  Stephens  v.  creditors  will  be  set  aside.  O'Con- 
Leonard,  122  Mich.  125,  80  N.  W.  nor  v.  Boylan,  49  Mich.  210,  13 
889.  Where  the  equity  of  redemp-  N.  W.  519. 

tion  in  a  homestead  is  not  worth'  16.  C.  L.  '15,  (12890);  Gum- 
more  than  fifteen  hundred  dol-  mins  &  Beecher's  Mich.  Judica- 
lars,  its  conveyance  is  not  fraudu-  ture  Act,  §1013);  Howell,  2nd. 
lent  as  to  creditors  of  the  grantor  Ed.,  §13074;  Comstock  v.  Corn- 
even  though  such  conveyance  is  stock,  27  Mich.  103;  Bank  of 
without  consideration.  Palmer  Constantino  v.  Jacobs,  50  Mich, 
v.  Bray.  136  Mich.  85,  98  N.  W.  340,  15  N.  W.  500. 
849;  Dickey  v.  Converse,  117  17.  Griffin  v.  Nichols,  Shepard 
Mich.  449,  457,  76  N.  W.  80;  Co.,  51  Mich.  575,  17  N.  W.  63; 
Smith  v.  Rumsey,  33  Mich.  183;  Zoellner  v.  Zoellner,  53  Mich.  625, 
Rhead  v.  Hounson,  46  Mich.  244,  19  N.  W.  556;  Kruger  v.  La  Blanc. 
9  N.  W.  267;  Pulte  v.  Gellen,  47  75  Mich.  425,  42  N.  W.  853. 

117 


§149  STATUTORY   PROVISIONS 

ing  the  levy  or  advertising  the  sale,  and  set  off  the  land  in 
compact  form,  including  the  dwelling  house  and  its  appurte- 
nances, to  the  amount  .which  the  owner  is  entitled  to  as  a 
homestead.  The  expense  of  the  survey  is  chargeable  on  the 
execution  or  decree  and  inay  be  collected  therefrom.18 

Where  an  execution  debtor  occupies  three  village  lots  as  a 
homestead,  all  in  one  enclosure,  it  is  the  duty  of  the  officer  who 
levies  the  execution  to  call  upon  the  owner  to  make  his  selec- 
tion of  a  homestead,  and  if  the  owner  fails  to  make  his  selection 
it  is  the  duty  of  the  officer  to  make  it  for  him.19 

§149.    How  Sale  Made  after  Survey. 

After  the  officer  has  made  the  survey  and  set  out  the  owner's 
homestead  land,  he  may  sell  the  property  levied  upon  or  in- 
cluded in  the  decree  of  foreclosure,  and  not  included  in  that 
set  off  as  homestead  land,  in  the  same  manner  as  provided  in 
other  like  cases  for  the  sale  of  real  estate ;  and  in  giving  a  deed 
of  the  same  it  should  be  described  as  in  the  original  levy,  or  as 
described  in  the  foreclosure  decree,  excepting  therefrom  by 
metes  and  bounds,  according  to  the  certificate  of  the  survey, 

the  quantity  set  off  as  a  "homestead.20 
/ 

§150.    House  on  Land  of  Another:     Not  Exempt  from  Sale  for 
Taxes. 

A  person  owning  and  occupying  a  house  situated  on  land 
which  lie  does  not  own  is  entitled  to  the  same  homestead 
exemption  of  the  house  as  though  he  owned  the  land.21 

Neither  the  constitution  or  the  statute  exempts  a  homestead 
from  taxation  or  from*  a  sale  for  taxes  levied  thereon.22 

18.  C.    L.    '15,     (12891);    Cum-       55  N.  W.  687. 

mins    &    Beecher's    Mich.    Judica-  20.     C.    L.    '15,     (12892);    Cum 

ture  Act,  §1014;  Howtell,  2nd.  Ed.,  mins    &    Beecher's    Mich.    Judica- 

§13075;  Riggs  v.  Sterling,  60  Mich.  ture  Act,  §1015;  Howell,.2nd.  Ed., 

657,  27  N.  W.  705;   Kruger  v.  La  §13076;  Averill  v.  Sav.  Bank,  143 

Blanc,  75  Mich.  425,  42  N.  W.  853;  Mich.  306,  106  N.  W.  865. 
Averill    v.    Sav.    Bank,    143   Mich.  21.     C.    L.    '15,    (12893);    Cum- 

306,  106  N.  W.  865.  mins    &    Beecher's    Mich.    Judica- 

19.  C.    L.    '15,    (12890);    Cum-  ture  Act,  §1016;  Howell,  2nd.  Ed., 
mins    &    Beecher's    Mich.    Judica-  §13077;     McKee     v.     Wilcox,     11 
ture  Act,  §1013;  Howell,  2nd.  Ed.,  Mich.  358;   Banker  v.  Paquett,  37 
§13074;  Averill  v.  Sav.  Bank,  143  Mich.    79;     Allen    v.    Crane,    152 
Mich.  306,  106  N.  W.  865;   Geiger  Mich.   380,   384,   116  N.  W.   392. 

v.  Greiner,  68  Mich.  153,  36  N  W.  22.     C.    L.    '15,    (12894);    Cum- 

48;    King  v.  Willborne,   83   Mich.  mins    &    Beecher's    Mich.    Judica- 

195,  47  N.  W.  106,  9  L.  R.  A.  803;  ture  Act,  §1017;   Howell,  2nd.  Ed., 

LaMont  v.  LaFever,  96  Mich.  195,  §13078. 

118 


HOW    HOMESTEAD  ADVERTISED  §152 

§151.    Appraisal  and  Notice  when  Homestead  Exceeds  Fifteen 
Hundred  Dollars  in  Value. 

When  a  homestead  exceeds  Fifteen  Hundred  Dollars  in  value, 
the  owner  does  not  for  that  reason  lose  the  benefit  of  the  con- 
stitution:! 1  and  statutory  exemption. 

Whenever  in  the  opinion  of  the  creditor,  or  an  officer  holding 
an  execution  or  foreclosure  decree  against  the  owner  of  a  home- 
stead, the  premises  claimed  by  him  as  a  homestead  are  worth 
more  than  fifteen  hundred  dollars,  such  officer  is  required  to 
summon  six  persons  qualified  to  act  as  jurors,  who  shall,  upon 
oath,  to  he  administered  to  them  by  such  officer,  appraise  the 
homestead  premises,  and  in  case  the  value  thereof  is  more  than 
fifteen  hundred  dollars,  and  the  homestead  premises  cannot  be 
divided,  they  must  make  and  sign  an  appraisal  of  its  value  and 
deliver  the  same  to  the  officer.  The  officer  is  required  to  deliver 
a  copy  of  such  appraisal  to  the  debtor,  or  to  some  member  of 
his  family  <>f  suitable  age  to  understand  the  nature  of  the  same, 
with  a  notice  attached  that  unless  the  debtor  shall  pay  the 
officer  the  surplus  over  and  above  fifteen  hundred  dollars,  or 
the  amount  due  on  the  execution  or  decree,  within  sixty  days 
thereafter,  that  such  premises  will  be  sold.23 

Such  appraisal  is  not  invalidated  by  reason  of  the  fact  that 
one  of  the  appraisers  is  over  sixty  years  of  age,  notwithstand- 
ing the  statutory  provisions  requiring  such  appraisers  to  have 
the  qualifications  of  jurors.24 

§152.     How  Homestead  Advertised  and  Sold  for  Surplus. 

If  the  debtor  does  not  pay  the  surplus  over  and  above  the 
fifteen  hundred  dollars  exemption,  or  the  amount  due  on  the 
execution  or  foreclosure  decree,  within  sixty  days  from  the 
time  the  copy  of  appraisal  and  notice  was  served  on  him  by  the 
officer,  such  officer  may  proceed  to  advertise  and  sell  the 
premises,  and  out  of  the  proceeds  of  the  sale  pay  the  debtor 
fifteen  hundred  dollars,  which  amount  is  exempt  from  execu- 
tion for  one  year  thereafter. 

23.     C.    L.    '15,    (12895);    Cum-  27    N.    W.    705;    Krueger    v.    La 

mins    &    Beecher's    Mich.    Judica-  Blanc,  75  Mich.  424,  42  N.  W.  853; 

ture  Act,  §1018;  Howell,  2nd.  Ed.,  Vt.  Sav.  Bank  v.  Elliott,  53  Mich. 

§13079;    First    Nat.    Bk.    of    Con-  256,  259,  18  N.  W.  805. 
stantine  v.  Jacobs,  50  Mich.  341,  24.     Flynn    v.    Kalamazoo    Cir- 

15  N.  W.   500;   Zoellner  v.  Zoell-  cult  Judge,  136  Mich.  23,  98  N.  W. 

ner,  53  Mich.  626.  19  N.  W.  556;  740;    People  v.    Rawn,    90    Mich. 

Riggs   v.   Sterling,   60   Mich.   651,  377,  51  N.  W.  522. 

119 


§152  STATUTORY   PROVISIONS 

The  balance,  if  any,  is  to  be  applied  by  the  officer  on  the 
execution  or  foreclosure  decree.  The  sale  must  be  at  public 
vendue,  and  no  sale  can  be  made  of  the  property  unless  more 
than  fifteen  hundred  dollars  is  bid  and  received  therefor. 

If  no  more  than  fifteen  hundred  dollars  is  bid,  the  officer  may 
return  the  execution  for  want  of  property,  or  report  the  facts 
to  the  court  in  which  the  foreclosure  decree  was  rendered,  as 
the  case  may  require. 

The  provisions  of  this  statute  do  not  apply  to  any  mortgage 
executed  before  the  act  took  effect.25 

25.     C.    E.    '15,    (12896);    Cum-  Mich.  626,  19  N.  W.  556;  Krueger 

mins    &   Beecher's    Mich.    Judica-  v.  La  Blanc,  75  Mich.  424,  42  N. 

ture  Act,  §1019;  Howell,  2nd.  Ed.,  W.   853. 
§13080;    Zoellner    v.    Zoellner,    53 


120 


CHAPTKK  XVI. 

SALE  OF  HOMESTEAD  OF  DECEASKh   I'KRSONS. 

§153.  By  Probate  Court  to  Pay  Debts  or  Expenses. 

§154.  Court  to  Fix  Location  and  Description. 

§155.  Appraisal  and  Report. 

§156.  Confirmation  of  Report.     New  Appraisal. 

§157.  Proceedings  on  Confirmation  of  Report. 

§153.    By  Probate  Court  to  Pay  Debts  or  Expenses. 

Under  some  circumstances  the  homestead  of  deceased  persons 
iimy  be  sold  1»y  proceedings  in  the  probate  court  during  the 
administration  of  his  estate,  and  the  constitutional  and  statu- 
tory exemption  preserved  and  protected  for  the  benefit  of  the 
widow  and  children  of  the  deceased. 

In  such  cases  the  proceedings  as  provided  for  by  the  statute 
>ln»nld  be  substantially  preserved. 

Whenever  an  application  is  made  to  a  probate  court  for  an 
order  to  sell  the*  real  estate  of  a  deceased  person,  for  the  pur- 
pose of  paying  his  debts  or  the  expenses  of  administration  of 
his  estate,  it  is  the  duty  of  the  court  to  ascertain  and1  determine. 
;ii  the  hearing  of  such  application,  what  portion,  if  any,  of 
such  real  estate  in  fact  constituted  the  homestead  <rf  the  de- 
ceased at  the  time  of  his  death.1 
• 

§154.     Court  to  Fix  Location  and  Description. 

If  it  appears  on  the  hearing  of  the  application  that  the 
deceased  was  the  owner  of  a  homestead  at  the  time  of  his  death, 
which  his  widow  or  minor  children  are  entitled  to  the  benefit 
of,  it  is  the  duty  of  the  court  to  fix,  by  its  decree,  the  location 
and  description  of  such  homestead,  without  reference  to  its 
value,  but  not  exceeding  in  extent  the  quantity  exempted  by 
law  from  the  payment  of  the  debts  of  the  deceased.  If  it 
appears  at  the  hearing  of  such  application  that  there  is  real 
estate  of  the  deceased,  not  included  in  the  homestead  as  fixed 
and  decreed  by  the  court,  that  may  be  used  for  the  payment  of 

1.     C.  L.  '15,  (14031);  Cummins       In  Re  Emmons'  Estate.  142  Mich. 
&  Beecher's  Mich.  Judicature  Act,       299,   309,    105  N  W.  758. 
§2153;  Howell,  2nd.   Ed.,    §13081; 

V  121 


I 

* 

§155  SALE  OP  HOMESTEAD 

debts,  such  land  must  be  first  sold,  and  the.  proceeds  applied 
according  to  law.  If  it  shall  appear  at  such  .hearing  that  there 
is  no  real  estate  of  the  deceased,  other  than  that  fixed  and 
decreed  by  the  court  as  a  homestead,  that  may  be  used  for  the 
payment  of  debts  of  the  deceased  and  expenses  of  administra- 
tion of  his  estate,  or  if  the  proceeds  of  the  sale  of  the  real 
estate,  other  than  the  home'stead  so  fixed  and  decreed,  shall  upon 
the  report  and  confirmation  of  such  sale  prove  insufficient  for 
the  purpose  of  paying  debts  of  the  deceased  and  expenses  of  the 
administration  of  his  estate,  the  probate  court  may  order  a 
division  or  sale  of  such  homestead  as  the  circumstances  may 
require.2 

§155.    Appraisal  and  Report. 

Before  a  division  or  sale  of  a  homestead  of  a  deceased  person 
by  the  probate  court  can  be  made,  it  must  be  examined  and 
appraised  by  three  disinterested  persons  appointed  by  the  pro- 
bate judge  and  sworn  to  faithfully  discharge  their  trust.  The 
persons  so  appointed  are  required  to  examine  the  homestead 
and  appraise  the  same  at  a  fair  cash  value,  and,  in  case  such 
value  shall  exceed  fifteen  hundred  dollars,  they  are  required  to 
determine  whether  or  not  the  premises  can  be  divided  without 
material  loss  or  injury,  so  that  a  homestead  not  exceeding 
fifteen  hundred  dollars  in  value  can  be  set  apart  for  the  benefit 
of  the  widow  and  family  of  the  deceased. 

When  the  examination  and  appraisal  is  completed,  the  ap- 
praisers must  make  a  report  in  writing,  ^igned  by  them,  to  the 
probate  court.  The  report  should  show  their  appraisal  of  the 
homestead  at  its  fair  cash  value,  and  if  such  value  as  deter- 
mined by  them  exceeds  fifteen  hundred  dollars,  they  must  also 
state  in  their  report  their  determination  whether  or  not  the 
homestead,  as  fixed  by  the  decree  of  the  probate  court,  can  be 
so  divided,  and  a  homestead,  of  which  the  report  must  show  the 
metes  and  bounds  and  in  which  must  be  included  the  dwelling 
and  its  appurtenances  not  exceeding  fifteen  hundred  dollars  in 
value,  can  be  set  apart  for  the  widow  and  family  of  the  de- 
ceased.3 

2.     C.  L.  '15,  (14031);  Cummins  3.     C.  L.  '15,  (14032);  Cummins 

&  Beecher's  Mich.  Judicature  Act,  &  Beecher's  Mich.  Judicature  Act, 

§2153;    Howell,   2nd.   Ed.,   §13081;  §2154;    He-well,  2nd.   Ed.,   §13082; 

In  Re  Emmons'  Estate,  142  Mich.  In  Re  Emmons'  Estate,  142  Mich. 

299,    309,    105   N.   W.    758.  299,  309,   105  N.  W.  758. 

122 


i-i:<M'KKi>i\«;s  o\  I-OM  H:\IATION   or  KKI-OKT 

Tin-  statute  does  mil  fix  ;i  time  \\itliin  which  the  appra: 
must  examine  tin-  premises  and  make  their  report,  but  does 
require  that  they  shall  proceed  "with  reasonable  diligence." 
The  order  of  t  lie  probate  court  appointing  the  appraisers  should 
ti\  a  reasonable  time  within  which  the  examination  of  the 
homestead  should  be  made  and  the  determination  and  report 
.returned  to  the  probate  court.  The  determination  and  report 
should  be  <on  lined  to  the  premises  fixed  and  determined  by  the 
decree  of  the  court  as  the  homestead  of  the  deceased. 

§156.     Confirmation  of  Report.     New  Appraisal. 

After  the  filing  of  the  report  and  before  administration  of 
the  estate  is  finally  closed,  the  probate  court,  at  the  request  of 
any  person  interested  in  the  estate,  is  required  to  order  all 
parties  interested  therein  to  appear  before  the  court  and  show 
cause,  if  any,  why  such  report  should  not  be  confirmed. 

Notice  of  the  time  to  show  cause  must  be  given  by  publishing 
a  copy  of  the  order  at  least  once  in  each  week  for  three  succes- 
sive weeks  in  a  newspaper  published  and  circulated  in  the 
county,  and  by  leaving  a  copy  of  the  order  at  the  homestead. 
Proof  of  such  publication  and  service  of  a  copy  of  the  order  at 
the  homestead  should  be  made.  The  service  of  a  copy  of  the 
order  at  the  homestead  should  be  made  by  delivering  the  same 
to  some  person  of  suitable  age  and  discretion,  capable  of 
understanding  its  contents,  purpose  and  effect. 

At  the  time  appointed,  or  at  some  adjourned  time,  the  pro- 
bate court  is  required  to  hear  and  consider  all  objections  to 
the  confirmation  of  the  report,  whether  of  law  or  fact,  and  to 
confirm  the  report  unless  it  shall  be  satisfied  that  the  appraisal 
is  materially  unfair  or  unjust,  or  that  the  division  as  recom- 
mended is  in  some  substantial  respect  improper,  in  either  of 
\\hich  events  the  court  shall  disapprove  the  report  and  order  a 
new  examination  and  appraisal. 

In  rase  a  new  examination  and  appraisal  is  ordered,  three 
other  disinterested  persons  must  be  appointed  for  that  purpose. 
who  are  required  to  proceed  in  the  same  manner,  and  are  sub- 
ject to  like  review  and  action  by  the  probate  court.5 

§157.    Proceedings  on  Confirmation  of  Report. 

Upon  the  confirmation  of  the  report  of  the  appraisers  the 
probate  court  is  required  to  proceed  as  follows: 

4.  See  note  3  this  chapter.  &  Beecher's  Mich.  Judicature  Act, 

5.  C.  L.  '16,  (14033) ;  Cummina       §2155;    Howell,   2nd.   Ed.,   §13083. 

123 


§157  SALE   OF   HOMESTEAD 

First: — If  the  appraised  value  of  the  homestead  as  fixed  by 
the  probate  court  does  not  exceed  fifteen  hundred  dollars,  no 
further  action  can  be  taken  or  had  in  the  matter  until  the 
homestead  exemption  ceases. 

Second : — If  such  appraised  value  exceeds  fifteen  hundred 
dollars,  and  the  examiners  have  reported  that  the  premises  can 
be  divided  so  that  a  homestead  not  exceeding  fifteen  hundred^ 
dollars  in  value  can  be  set  apart  for  the  benefit  of  the  widow* 
and  family  of  the  deceased,  the  court  is  required  to  make  an 
order  that  such  homestead  be  set  apart  for  the  benefit  of  the 
widow  or  family  of  the  deceased  until  the  same  shall  cease  to 
be  exempt  from  the  payment  of  the  debts  of  the  deceased,  and 
further  order  that  the  remainder  of  the  premises  be  sold  for  the 
payment  of  debts  and  expenses  of  administration  in  the  manner 
provided  by  law. 

Third : — If  the  appraised  value  of  the  homestead  as  fixed  by 
the  court  shall  exceed  fifteen  hundred  dollars  and  the  apprais- 
ers report  that  it  can  not  be  divided  and  a  homestead  not 
exceeding  fifteen  hundred  dollars  in  value  set  apart  for  the 
benefit  of  the  widow  or  family  of  the  deceased,  the  probate 
court  is  required  to  order  the  whole  of  such  premises  to  be  sold 
according  to  law. 

The  executor  or  administrator  is  required  to  reserve  from 
the  proceeds  of  such  sale  the  sum  of  fifteen  hundred  dollars  for 
the  benefit  of  the  widow  or  family  of  the  deceased,  and  apply 
the  remainder,  so  far  as  the  same  will  go,  or  so  far  as  may  be 
necessary,  in  payment  of  the  debts  of  the  deceased  and  the 
expenses  of  administration  of  his  estate. 

The  executor  or  administrator  may  invest  the  sum  retained 
from  the  proceeds  of  the  sale,  with  the  approval  of  the  probate 
judge,  either  in  the  purchase  of  a  new  homestead,  or  in  proper 
securities  for  the  benefit  of  the  widow  or  family  of  deceased, 
as  may  seem  best,  and  the  same,  or  the  property  or  security  in 
which  it  shall  be  invested,  shall  remain  exempt  from  the  pay- 
ment of  the  debts  of  the  deceased  and  the  expense  of  adminis- 
tering his  estate,  in  like  manner  as  a  legal  homestead  of  the 
deceased  had  he  left  one  would  have  remained  exempt,  and 
shall  finally  descend  according  to  the  laws  of  this  state  govern- 
ing the  descent  of  real  estate.6 

6.  C.  L.  '15,  (14034) ;  Cummins  In  Re  Emmons'  Estate,  142  Mich. 
&  Beecher's  Mich.  Judicature  Act,  299,  309,  105  N.  W.  758;  Hamilton 
§2156;  Howell,  2nd.  Ed.,  §13084;  v.  Wilcox,  167  Mich.  558. 

124 


CHAPTER  XVII. 

(  ()NTK.\(  TS  OF  MARRIED  WOMEN. 

§158.  At  Common  Law. 

§159.  Constitutional  Provisions. 

§160.  Statutory  Provisions. 

§161.  General  Effect  of  the  Statute. 

§162.  Purpose  of  the  Statute. 

§163.  Executory  Contracts   of  Married   Women. 

§164.  Same   Subject   Continued. 

§165.  Same  Subject  Continued. 

§166.  Authority  of  Husband  as  Agent  of  Wife. 

§167.  Rights  of  Husband's  Creditors  as  against  the  Wife. 

§168.  Improvements  and  Materials  Furnished  to  Husband  to  be  Used 
on  Land  of  Wife. 

§169.  Necessaries  and  Family  Expenses. 

§170.  Necessaries    and    Family   Expenses — Contract   for   Nursing. 

§171.  Married  Woman's  Subscription  Contract  for  Public  Improve- 
ments. 

§172.  Contract  of  Married  Women  Jointly  with  Husband. 

§173.  Debts  Incurred   by  Married  Woman  in  her  Separate  Business. 

§174.  Debts  Contracted  on  Credit  of  Wife's  Separate  Estate. 

§175.  Contracts  for  Benefit  of  Wife's  Separate  Estate. 

§158.    At  Common  Law. 

My  the  common  law  a  married  woman  cannot  acquire  legal 
rights  to  personal  property,  nor  make  any  contract^,  binding 
upon  her  during  her  coverture,  and  if  she  have  money  or 
goods  in  her  possession  and  she  lend  the  money  or  sell  the 
goods,  the  right  to  recover  the  debt  for  the  money  loaned,  or 
the  value  of  the  goods  sold  or  parted  with  by  the  wife,  Vtistfl 
in  i lie  husband.1 

Although  by  tin-  common  law  a  married  woman  is  incapable 
of  making  a  contract,  she  is  capable  of  having  a  chose  in  action 
conferred  upon  her,  which  will  survive  to  her  at  her  husband 's 
death,  unless  lie  had  previously  reduced  it  into  possession.* 

1.     1  Chitty  on  Contracts,  page  v.  Atcaeson,   7  Q.    B.    864,    875; 

L'L'T.  Caters   v.    Madelley,    6    M,    &   W. 

*    2.    1  Chitty  on  Contracts,  page  423;   Fiske  v.  Cushman,  6  Gush. 

228;  Dolson  v.  Midland  Co.  R.  R.  (Mass.)    20;    Draper    v.    Jackson, 

Co.,  13  C.  B.  474,  478;  Scarpellini  16  Mass.  480;    Stanwood  v.  Stan- 

125 


§159  CONTRACTS   OF    MARRIED    WOMEN 

So  where  a  husband  and  wife  have  been  divorced  from  the 
bonds  of  matrimony,  the  wife  becomes  entitled  to  her  choses 
in  action  which  have  not  been  reduced  into  possession  by  the 
husband  during  coverture.3 

§159.     Constitutional  Provisions. 

The  constitution  and  statutes  of  most  of  the  states  have  re- 
moved or  largely  modified  the  common  law  disabilities  of 
married  women  to  make  contracts.  In  Michigan,  the  consti- 
tution of  1850  and  the^  present  constitution  adopted  in  1908 
provide  that  "the  real  and  personal  estate  of  every  woman, 
acquired  before  marriage,  and  all  property  to  which  she  may 
afterward  become  entitled  by  gift,  grant,  inheritance  or  de- 
vise, shall  be  and  remain  the  estate  and  property  of  such 
woman,  and  shall  not  be  liable  for  the  debts,  obligations  or 
engagements  of  'her  husband,  and  may  be  devised  or  be- 
queathed by  her  as  if  she  were  unmarried."4 

§160.     Statutory  Provisions? 

The  Michigan  married  women's  act  of  1855  provides  that 
"the  real  and  personal  estate  of  every  female,  acquired  before 
marriage,  and  all  property,  real  and  personal,  to  which  she 
may  afterward  become  entitled  by  gift,  grant,  inheritance, 
devise  or  in  any  other  manner,  shall  be  and  remain  the  estate 
and  property  of  such  female,  and  shall  not  be  liable  for  the 
debts,  obligations,  and  engagements  of  her  husband,  and  may 
be  contracted,  sold,  transferred,  mortgaged,  conveyed,  de- 
vised or  bequeathed  by  her,  in  the  same  manner  and  with  the 
like  effect  as  if  she  was  unmarried."5 

The  constitutional  and  statutory  provisions  do  not  remove 
all  of  the  common  law  disabilities  of  married  women,  nor  give 
them  power  to  make  contracts  except  in  relation  to  their  sep- 
arate property.8 

i 

wood,    17    Mass.     57;     Phelps    v.       662;     Mutual     Benefit     Assn.      v. 
Phelps,    20     Pick.      (Mass.)     556;       Wayne   Co.    Sav.   Bank,   68   Mich. 
Adams  v.  Brockett,  5  Met.  (Mass.)       126,  35  N.  W.  853. 
280;    Jackson    v.   Park,    10   Gush.          5.    Act   No.    168,     P.    A.     1855, 
(Mass.)   550.     .  Sec.  1;   C.  L.  '15,    (11485);   How- 

3.  Legg  v.  Legg,  8  Mass.  99.  ell,  2nd.  Ed.,  §11545. 

4.  Constitution  1850,  Art.  XVI,  6.     Howe    v.     North,    69    Mich. 
Sec.    5;    Constitution    1908,    Art.       272,  37  N.   W.   213;     DeViries    v. 
XVI,  Sec.  8;  Vail  v.  Winterstein,       Conklin,  22  Mich.  259;   Russell  v. 
94  Mich.  232,  33  N.  W.  932;  Smith       Peoples'  Sav.  Bk.,  39  Mich.  671. 
v.  Martin,  124  Mich.  34,  82  N.  W. 

126 


KXKC1  'ToliY    roNTIIAi'TS   t>F    MAKKIKh    WoMKN  $  \  t\'.\ 

They  reserve  to  a  wife  the  same  rights  to  her  property  after 
marriage  which  she  had  before  marriage.7 

§161.     General  Effect  of  the  Statute. 

Tin-  statute  docs  not  ; i ll'ect  the  marital  uuiiy  of  husband  and 
wife  in  the  marriage  relationl  It  goes  no  farther  than  to  in- 
sure to  the  wife  the  property  which  she  had  at  the  time  of  the 
marriage,  and  such  as  she  may  acquire  afterward,  and  to  give 
to  her  the  power  which  she  did  not  possess  ai  common  law.  to 
couirol.  protect  and  dispose  of  it  in  her  own  name,  by  her  own 
act,  free  from  the  interference  or  interposition  of  her  husband. 
It  does  not  affect  the  family  relations,  nor  deprive  the  hus- 
band of  any  marital  rights,  except  as  they  pertain  to  the  wife's 
separate  property.  It  relieves  the  husband  of  no  responsi- 
bility which  the  common  law  imposed  upon  him,  except  as  to 
the  wife's  contracts  and  debts.  He  is  still  under  obligations 
to  support  her,  and  is  entitled  to  her  services  except  where 
such  services  arc  given  to  her  individual  property  or  separate 
business.8 

§162.     Purpose  of  the  Statute. 

This  statute,  and  the  constitutional  provisions  pursuant  to 
which  it  was  enacted,  abrogate  the  common  law  rule  by  which 
the  husband  was  liable  for  the  debts  of  his  wife  contracted 
prior  to  their  marriage,9  and  they  abolish  the  common  law 
rule  respecting  the  husband's  rights  over  his  wife's  property 
given  to  him  by  virtue  of  the  marriage.10  It  was  passed  for 
the  protection  of  married  women,  and  to  enlarge,  not  to  con- 
tract, their  rights,  and  was  not  intended  to  deprive  them, 
whether  acting  alone  or  jointly  with  others,  of  the  right  to 
protect  their  property  interests.11 

§163.     Executory  Contracts  of  Married  Women. 

It  has  been  uniformly  held  in  Michigan,  since  the  passage 
of  the  married  women's  act  in  J.855,  that  a  married  woman 

- 

7.  Wales  v.  Newbould,  9  Mich.      34,  82  N.  W.  662. 

74,  75.  10.     White   v.   Zane,     10    Mich. 

8.  Snyder  v.   People,  26   Mich.  333;    Starkeweather    v.    Smith,    6 
106;    Glover  v.   Alcott,    11    Mich.  Mich.    377;    Gilespie    v.    Beecher, 
482,    483;     Howe     v.     North,     69  94  Mich.  374,  54  N.  W.  167. 
Mich.  272,  37  N.  W.  213.  11.     Gilespie     v.     Beecher,      94 

9.  Smith  v.  Martin,  124  Mich.  Mich.  374,  54  N.  W.  167. 

127 


§164  CONTRACTS   OF    MARRIED    WOMEN 

cannot  become  personally  liable  upon  her  executory  contract 
unless  it  relates  to  her  sole  property.  And  she  cannot  be  held 
liable  as  surety  for  her  husband  or  any  other  person,  or  by 
reason  of  being  a  partner  of  her  husband.  In  all  such  cases 
the  statute  does  hot  remove  the  common  law  disability  of  mar- 
ried women. 

These  rules  are  all  intended  for  the  benefit  and  protection 
of  the  wife,  and  are  in  direct  antagonism  with  the  doctrine 
that  she  cannot  protect  her  title  to,  or  possessions  of,  prop- 
erty when  such  title  or  possession,  either  as  a  sole  or  joint 
owner,  is  attacked.12 

Married  women  in  this  state  have  no  general  capacity  to 
make  an  executory  contract,  and  when  such  a  contract  is  re- 
lied upon  it  is  necessary  to  show  the  facts  that  it  may  be  seen 
that  the  contract  in  some  way  relates  to  her  separate  prop- 
erty, and  is  of  that  character  which  would  enable  her  to  bind 
herself  personally.13 

§164.     Same  Subject  Continued. 

A  married  woman  cannot  be  held  liable  upon  a  contract 
made  jointly  with  her  husband  for  improvements  on  real  es- 
tate held  by  them  jointly,  by  entireties.  Such  estate  is  not 
such  separate  property  of  the  wife  as  the  statute  gives  her 
power  to  make  contracts  in  relation  to.  She  can  neither  sell, 
encumber,  or  control  it  while  living,  nor  devise  it  at  her  death. 

The  common  law  disabilities  of  married  women  are  only 
partially  removed  by  the  statute,  and  one  who  relies  upon  a 
contract  made  by  a  wife  must  show  that  it  relates  to  her  sep- 
arate property.14 

A  married  woman  cannot  make  herself  personally  liable  as 
partner  with  her  husband.15 

12.  Gilespie     v.     Beecher,     94  387;    Johnson    v.    Sutherland,    39 
Mich.  367,  54  N.  W.  167.  Mich.  579;    Russell  v.  Sav.  Bank, 

13.  Tillman   v.    Shackelton,   15  39  Mich.  671;   Gantz  v.  Toles,  40 
Mich.  447;  Campbell  v.  White,  22  Mich.   725;    Insurance   Co.   v.  Mc- 
Mich.    178;    DeViries    v.    Conklin,  Clellan,  43  Mich.  564,  6  N.  W.  88; 
22  Mich.  255;   Powers  v.  Russell,  Buhler     v.     Jennings,"    49     Mich. 
26  Mich.  179;   Emory  v.  Lord,  26  '    538,    14   N.    W.    488;    Edwards    v. 
Mich.  431;    West  v.  Larraway,  28  McEnhill,  51  Mich.  166,  16  N.  W. 
Mich.    464;    Ross    v.    Walker,    31  322. 

Mich.  120;   Gillam  v.  Boynton,  36  14.     Speier   v.    Opper,   73   Mich. 

Mich.   236;    Jenne   v.    Marble,    37  39,  40  N.  W.  909. 

Mich.  319;  Kitchell  v.  Midgett,  37  15.     Bassett    v.    Shepardson,    52 

Mich.  81;  Carley  v.  Fox,  38  Mich.  Mich.   3,   17   N.   W.   217;    Artman 

128 


AUTHORITY    or    III  Si'.AMi    AS    A<;i:.\T    OK    WIFi:  §166 

Endorsement  by  a  married  women  of  a  note  due  to  her,  as 
security  for  the  debt  of  a  corporation  in  which  she  holds 
stock,  will  transfer  the  property  in  the  note,16  but  does  not 
make  her  personally  liable  as  endorser  of  the  note.17 

§165.     Same  Subject  Continued. 

The  test  of  the  competency  of  a  married  woman  to  make  an 
executory  contract  which  will  make  her  personally  liable,  is 
whether  or  not  it  relates  to  and  deals  with  her  sole  property. 
If  it  does,  she  is  held  liable ;  if  it  does  not,  she  is  incapable  of 
]'indin<;  herself -by  it.18 

A  married  woman  is  not  liable  for  the  payment  of  a  note 
executed  by  her  and  her  husband  for  the  purchase  of  land 
deeded  to  them  jointly.  In  such  a  case  the  wife  has  no  such 
separate  interest  in  an  estate  by  entirety  as  would  afford  a 
valid  consideration  for  her  note.  Nor  is  her  separate  estate 
liable  on  such  a  note  after  her  death.19 

A  wife  is  not  liable  on  a  note  given  by  her  jointly  with  her 
husband  for  the  price  of  a  horse  purchased  by  both.  The  horse 
being  purchased  and  being  owned  jointly  by  the  husband  and 
wife,  the  effect  of  the  undertaking  of  the  wife  in  such  a  case 
would  be  to  make  her  surety  for  her  husband  for  at  least  one 
half  of  the  note  if  her  undertaking  is  binding.20 

It  is  not  enough  to  charge  a  married  woman  upon  her  ex- 
ecutory contract  that  there  is  a  consideration  for  it  which 
would  support  a  promise  at  the  common  law,  or  that  the  con- 
tract incidentally  inures  to  her  benefit.21 

§166.     Authority  of  Husband  as  Agent  of  Wife. 

When  ;i  husband  goes  on  ;md  makes  valuable  inproveinents 
on  land  purchased  by  his  wjfe  on  a  contract,  relying  on  the 
wife's  purchase,  in  a  suit  by  her  for  specific  performance  of 

v.   Ferguson   73  Mich.   146,   40  N.       Mich.  691,  78  N.  W.  884. 

W.  907.  20.     Caldwell      v.      Jones,      116 

16.  Watson     v.«   Thurberl      11       Mich.  129,  73  N.  W.  129. 

Mich.  457.  21.     Russell    v.    Sav.    Bank,    39 

17.  Russell    v.     Peoples'     Sav.  Mich.  679,  33  Am.  R.  444;  Speier 
Bk.,    39    Mich.    671;    Hepburn    v.  v.   Opper   73   Mich.   35,   40   N.  W. 
Warner,  112  Mass.  267.  909,  16  Am.  St.  R.  556;  Artmand 

18.  Russell    v.    Peoples'     Sav.  v.  Ferguson,  73  Mich.  146,  40  N. 
Bk.,  39  Mich.  674;  Doan  v.  Feath-  W.  907,  16  Am.  St.  R.  572;   Bas- 
er's  Estate,   119  Mich.  691,  78  N.  teit    v.    Shepardson,    52    Mich.    3, 
W.  884.  17   N.   W.   217;    Curtis   v.   Trowe, 

19.  Doan  v.  Feather's  Est,  119  74  Mich.  99,  41  N.  W.  876. 

129 


§107  CONTRACTS    OP     MARRIED    WOMEN 

the  land  contract,  she  should  have  the  benefit  of  such  improve- 
ment the  same  as  though  they  had  been  paid  for  in  whole  or 
in  part  by  herself.22 

Where  a  husband  authorized  to  sell  his  wife's  goods  for 
cash,  sells  them  for  a  cash  payment  in  part  and  the  balance 
on  time,  no  title  passes  to  the  purchaser  as  against  an  attach- 
ment subsequently  levied  by  creditors  of  the  wife,  and  her  sub- 
sequent ratification  is  ineffectual  to  convey  title  to  such  pur- 
chaser.23 

A  husband  acting  as  his  wife's  agent  in  purchasing  a  mort- 
gage and  collecting  the  amount  due  thereon  has  no  implied 
authority  to  compromise  a  claim  against  the  assignor  on  the 
covenant  of  indebtedness  contained  in  the  assignment.24 

A  mere~statement  of  a  husband  that  he  is  authorized  to  act 
as  agent  for  his  wife  is  insufficient  to  prove  his  authority.25 

§167.    Rights  of  Husband's  Creditors  as  against  the  Wife. 

Where  one  who  has  refused  to  sell  to  a  husband  because  he 
did  not  think  it  safe  to  trust  him  is  willing  to  sell  to  the  wife 
on  credit,  trusting  to  the  property  in  her  hands  and  to  her  hon- 
esty in  making  it  available  for  his  protection,  and  makes  the 
sale  to  her  in  good  faith,  the  title  to  the  property  will  not 
pass,  contrary  to  the  intent  of  both  parties,  to  the  husband 
for  the  benefit  of  his  creditors  who  could  neither  be  wronged 
by  any  sale  to  her  nor  have  any  right  to  insist  on  a  sale  to  the 
husband.28 

A  wife,  by  allowing  her  husband  to  pay  a  portion  of  his 
debt  with  her  money,  does  not  thereby  make  herself  liable  tb 
pay  the  remainder  of  the  debt.27 

Where  there  is  evidence  justifying  the  inference  that  the  hus- 
band has  mingled  his  own  money  with  that  of  his  wife,  with 
her  knowledge  and  consent,  with  the  understanding  that  the 
entire  fund  should  be  treated  as  his  own,  such  fund  is  subject 
to  garnishment  for  his  debt.26 

22.  Murphy      v.      Stover,      47  26.     Rankin  v.  West,   25  Mich. 
Mich.  522,  11  N.  W.  358.  195. 

23.  Newbern  v.  Wood,  52  Mich.  27.     O'Donnell  v.  Grey,  99  Mich. 
CIO,  18  N.  W.  382.  534,  58  N.  W.  475. 

24.  Eaton  v.  Knowles,  61  Mich.  28.     Mclntyre   v.  Farmer's  and 
625,  28  N.  W.  740.  Merchant's  Bk.,  115  Mich.  255,  73 

25.  Just  v.  State  Sav.  Bk.,  132  N.  W.  233. 
Mich.   600,  94  N.   W.   200. 

130 


NECESSARIES   AND   FAMILY   EXPENSES  §169 

§168.    Improvements  and  Materials  Furnished  to  Husband  to 
be  Used  on  Land  of  Wife. 

When  improvements  are  made  and  materials  furnished 
therefor,  to  be  used  on  land  owned  by  the  wife,  and  all  bills 
are  made  out  to  the  husband  and  payments  made  by  him,  and 
no  particular  direction  or  oversight  is  made  by  the  wife,  other 
than  that  natural  for  a  wife  as  to  the  house  of  her  husband, 
she  cannot  be  held  liable  for  any  portion  of  such  improve- 
ments and  material.29 

A  married  woman  is  not  personally  responsible,  and  her 
land  is  not  bound,  for  improvements  and  expenditures  made 
on  it  by  her  husband,  where  no  credit  has  been  given  to  her, 
and  where  he  has  not  contracted  on  her  behalf.80 

In  an  action  against  a  married  woman  for  repairs  on  her 
house,  proof  that  plaintiff  obtained  judgment  against  her  hus- 
band is  conclusive  evidence  that  plaintiff  looked  to  him  as  the 
debtor.81 

But  there  are  cases  where  a  married  woman  may  be  held  lia- 
ble for  improvements  made  on  her  land  by  her  husband  where 
she  lias  made  no  express  rontract.  Her  husband  may  act 
as  her  agent,  and  bind  her  so  far  as  he  acts  within  the  scope 
of  his  authority  as  such  agent. 

.  Where  buildings  are  erected  on  the  land  of  a  married 
woman  with  her  knowledge  and  consent,  from  material 
lected  by  her,  she  is  liable  for  the  value  of  the  materials  fur- 
nished, though  the  business  was  conducted  mainly  by  her  hus- 
band, and  the  person  furnishing  the  materials  supposed  they 
\vere  hein<r  furnished  to  him  and  that  he  owned  the  prop- 
erty.82 

§169.     Necessaries  and  Family  Expenses. 

While  it  is  the  duty  of  the  husband  to  support  his  wife  and 
family,  still  a  wife  may  make  herself  personally  responsible 
for  family  necessaries.  If  she  buys  the  goods  herself  and 

29.  Newcomb    v.    Andrews,    41  Powers,    56    N.    Y.    39;    Woodruff 
Mich.  518.  2  N.  W.  672.  Iron   Wks.  v.    Adams,*  37    Conn. 

30.  Morrison  v.  Berge,  42  Mich.  ^33;  Wright  v.  Hood,  49  Wis.  235. 
393,    4   N.    W.    731;    Newcomb   v.  31.     McCausland     T.    King,    60 
Andrews.    41   Mich.   518,  2  N.  W.  Mich.  70,  26  N.  W.  830. 

C672;   Emory  v.   Lord,    26    Mich.  32.     Popp      v.       Connery,      130 

431;  Williams  v.  Magoon,  30  Mich.  Mich.  84.   101   N.   W.  54;    Frolich 

273;  Holmes  v.  Brunson,  43  Mich.  v.   Carroll,   127   Mich.   561,   86  N. 

562,   6    N.   W.    89;    Vanneman   v.  W.  1034. 

131 


§170  CONTRACTS   OF    MARRIED   WOMEN 

agrees  to  pay  for  them  she  is  personally  liable  regardless  of 
the  use  to  which*  she  intends  to  put  them. 

Even  where  a  married  woman  who  owns  a  separate  estate 
is  residing  with  her  husband,  whose  duty  it  is  to  furnish  the 
necessaries  for  his  family,  she  can  make  herself  personally 
liable  for  family  necessaries  purchased  by  herself,  on  her  in- 
dividual credit  and  sole  agreement  to  pay  for  them. 

The  liability  of  the  wife  is  consequent  upon  her  obtainment 
of  the  goods  on  her  sole  credit  and  individual  promise  to  pay 
for  them  contemporaneous  with  such  obtainment,  and  is  not 
conditional  upon  nor  affected  by  the  kind  of  use  to  which  the 
goods  are  subsequently  put.33  And  her  personal  liability  to  the 
vendor  is  not  contingent  upon  her  ownership  of  other  separate 
estate,  nor  on  the  character  of  the  goods  bought,  nor  the  nature 
of  their  immediate  or  ulterior  disposition;  but  it  exists,  if  at 
all,  when  the  property  is  obtained  on  her  exclusive  credit  and 
individual  agreement.  Her  promise  to  pay  for  the  property  is 
a  promise  to  pay  for  her  separate  property,  and  therefore  one 
which  she  is  competent  to  make.34 

§170.    Necessaries  and  Family  Expenses  Continued. 

A  married  woman  whose  husband  has  transferred  to  her 
their  homestead  and  the  personal  property  about  the  house, 
and  agrees  to  pay  her  one  hundred  dollars  per  year  during  her 
life  in  consideration  of  the  release  of  dower  and  all  claims 
present  and  future  tovhis  property,  may  bind  herself  by  a  con- 
tract for  the  employment  of  a  nurse  for  herself,  although  her 
husband  is  still  living  with  her.35 

§171.    Married  Woman's  Subscription  Contract  for  Public  Im- 
provfements. 

The  subscription  contract  of  a  married  woman  to  a  fund  for 
the  purpose  of  securing  the  location  of  a  business  block  in  the 
vicinity  of  property  owned  by  her  is  not  within  the  power  to 

33.  Tillman   v.    Shackelton,   15       Colby,  99  Mass.  559. 

Mich.  447;   Campbell  v.  White,  22  35.     Barber  v.  Eberle's  Est.  131 

Mich.    185;    Darby    v.    Callaghan,  Mich.  317,  91  N.  W.  123;   Hersch- 

16  N.  Y.  71;   Knapp  v.  Smith,  27  field  v.  Baldwin,  83  Mich.  116,  47 

N.  Y.  277;    Draper  v.   Stowell,  35  N.  W.   239;    Meads  v.  Martin,    84 

N.  Y.  507.  Mich.    306,    47   N.    W.    583;    Good- 

34.  Campbell      v.      White,      22  man    v.    Shipley,    105    Mich.    439, 
Mich.    185;    Stuart    v.    Jenkins,    6  €3  N.  W.   412;    Foster  v.  Felcher, 
Allen     (Mass.)    300;    Larrabee    v.  119  Mich.  353,  78  N.  W.  120. 

132 


I>I:KTS  IN   IIKK  SKI-AKATK  r.rsiNKss  ?;17.'! 

contract  conferred  by  the  married  women's  act  of  1855,  al- 
though her  property  is  incidentally  benefited  by  the  improve- 
ment. An  incitlcnial  benefit  to  her  property  is  not  sufficient. 
The  test  of  competency  is  whether  or  not  the  contract  deals 
with  the  married  woman's  separate  estate.88 

§172.     Contract  of  Married  Women  Jointly  with  Husband. 

A  married  woman  is  not  liable  on  a  contract  signed  by  her 
with  her  husband  for  property  purchased  and  owned  by  them 
jointly. 

Such  contract  is  not  in  relation  to  her  separate  estate,  nor 
can  she  be  made  liable  for  the  purchase  of  property  to  be  owned 
by  herself  and  another  jointly.37 

For  her  sole  benefit,  or  that  of  her  separate  estate;  a  married 

*  woman   may  «.n tract  jointly  with  her  husband  and  become 

personally  liable  under  the  statute;  but  if  the  contract  is  for 

the  benefit  of  the  husband,  or  for  the  benefit  of  the  husband  and 

wife  jointly,  she  is  not  liable.88 

A  joint  contract  by  husband  and  wife  for  family  necessaries 
will  be  regarded'as  a  contract  of  the  husband  only.39 

A  married  woman  is  liable  on  a  bond  executed  by  herself  and 
husband  jointly  for  money  borrowed  by  her  and  used  by  her  to 
build  on  her  own  land.40 

A  note  given  by  ft  married  woman  to  prevent  an  attempt  to 
collect  a  note  of  her  husband  of  the  same  amount,  by  attacking 
the  transfer  by  him  to  her  of  all  his  property  under  the  claim 
that  snch  transfer  is  fraudulent  as  to  creditors,  is  valid  against 
the  wife.41 

§173.     Debts   Incurred   by   Married   Woman   in   her   Separate 
Business. 

A   married  woman  who  takes  from  her  husband  a  deed  of 

36.  Russell   v.   Bank,  39  Mich.  39.     21    Cyc.,    14-56;    Berger    v. 
671,  33  Am.   R.  444;   Chamber  of  Clark,  79   Pa.   St.    340;     Park    v. 
Commerce  v.  Goodman,  110  Mich.  Cleaver,  37  Pa.  St.  251;  Moore  v. 
498,    68    X.     W.     295,     Moore     &  Joyce,   161   Pa.   St.     138,    28    All. 
Grant  JJ.,  dissenting.  1080;    Collins   v.   Hall,    55    S.    C. 

37.  Doane    v.    Feather's    Est.,  336,  33  S.  E.  466. 

119   Mich.  691,  78  N.  W.   884.  40.     Wilson   v.   Wilson   Est.,   80 

38.  21    Cyc.,    14-56;    Barber    v.  Mich.  472,  45  N.  W.  184. 
Hoover,    120    Ind.    193,    28   N.    E.  41.     Harris  v.  Gates,  121  Mich, 
888;  Verill  v  Parker.  65  Me.  578;  163,   79   N.  W.   1098;   Whelply  r. 
King  v.  Page,  119  Wis.  105,  95  N.  Stoughton,    112   Mich.    594,   70    N. 
W.  108.  W.   1098. 

133 


§174  CONTRACTS  OP   MARRIED   WOMEN 

land  previously  leased  by  him,  and  so  succeeds  him  as  lessor,  is 
liable  for  work  and  materials  furnished  by  the  lessee  at  the 
request  of  her  husband,  acting  as  her  agent,  after  she  acquires 
the  property,  less  any  sum  paid  by  the  husband ;  but  not,  how- 
ever, if  the  work  and  material  was  furnished  the  husband  on 
his  own  account,  or  under, his  express  promise  as  principal.42 

A  married  woman  may  constitute  her  husband  her  agent  to 
carry  on  business  for  her  in  her  name.  Evidence  that  a  hus- 
band deeded  his  farm  to  his  wife,  and  from  that  time  the  busi- 
ness was  carried  on  by  the  wife,  and  the  bank  account. growing 
out  of  the  business  was  kept  in  her  name,  tends  to  show  that  a 
note,  given  by  her  for  over -draft  of  her  bank  account  relates  to 
her  separate  estate.48 

§174.     Debts  Contracted  on  Credit  of  Wife's  Separate  Estate. 

A  married  woman  to  whom  a  loan  is  made  on  her  husband's 
representation,  in  her  presence,  that  it  is  for  the  benefit  of  her 
separate  property,  and'  is  so  understood  by  her  and  believed 
and  relied  on  by  the  lender  in  good  faith,  is  liable,  though  no 
part  of  the  money  was  in  fact  so  used.4* 

It  being  conceded  that  a  married  woman  is  liable  for  debts 
contracted  by  her  for  the  benefit  of  her  separate  estate,  the 
question  often  arises  as  to  what  contracts  are  for  its  benefit. 
Among  the  contracts  generally  held  to  be  for  the  benefit  of 
wife's  separate  estate  may  be  enumerated  the  following :  reason- 
able hire  of  servants  for  the  care  of  her  property,"43  labor  em- 
ployed in  the  cultivation  of  her  land;40  purchase  of  animals, 
material,  tools,  or  machinery  furnished  for  use  on  her  farm;47 
labor  and  materials  furnished  for  the  improvement  and  repair 
of  her  separate  property  ;48  money  borrowed  to  pay  off  a  mort- 
gage or  other  incumbrance  upon  her  separate  property.49  So 

42.  Lubebe  v.  Thorp,  94  Mich.  Knabb,  116  Pa.  St.  28,  9  Atl.  33. 
268,  54  N.  W.  41.  47.     Mitchell    v.    Smith,    32    la. 

43.  Bank  v.  Newton,  117  Mich.  484;  Batchelder  v.  Sargent,  47  N. 
433,  75  N.  W.  934.  H.   262;   Arrington   v.  Bell,  94  N. 

44.  Vosburgh    v.     Brown,    119  C.   247;    McCormick   v.   Holbrook, 
Mich.   697,  78   N.   Wv  886;   McVey  2  la.  487. 

v.  Cantrell,  70  N.  Y.  295,  26  Am.  48.     Henry     v.     Blackburn,     32 

R.  605.  Ark.    445;    Schnabel    v.    Betts,    23 

45.  Walker    v.  "Smith,    28    Ala.  Fla.  178,  1  So.  692;  Colvin  v.  Cur- 
569;    Sanderlin   v.    Sanderlin,   122  rier,  22  Barb.  (N.  Y.)  371. 

N.  C.  1,  29  S.  E.  55.  49.     Daniels    v.    Royce,    96   Ga. 

46.  Moshier      v.      Kittle,      101       566,  23  So.  493. 
Mich.  345,  59  N.  W.  497;  Botts  v. 

134 


WIFK'S    SKI'AKATK    KSTATE  §175 

:i   covenant  to  support  a  person  who  conveys  property  to  a 
married  woman  is  for  the  benefit  of  her  separate  estate.80 

§175.    Contracts  for  Benefit  of  Wife's  Separate  Estate. 

Tmlcr  our  present  system,  whatever  contract  a  married 
woman  is  legally  competent  to  make  may  be  made  "with  the 
like  etVect  as  if  she  was  unmarried."51 

I5ut  the  statute  does  not  confer  upon  her  a  general  capacity 
to  make  contracts.  She  can  make  only  such  contracts  as  relate 
to  her  own  property,  and  in  that  respect  she  has  the  same  legal 
rapacity  as  a  man. 

The  contract  of  a  married  woman  may  relate  to  her  separate 
property,  although  such  property  is  not  in  any  way  benefited 
by  it.  If  she  mortgages  her  separate  property  to  secure  the 
debt  or  obligation  of  her  husband,  or  of  any  other  person,  the 
property  mortgaged  is  bound  by  the  contract,  but  she  cannot  be 
held  personally  liable  for  th£  deficiency  if  the  property  mort- 
gaged is  not  sufficient  to  pay  the  debt.52  A  conveyance  by 
mortgage  of  her  separate  property  comes  clearly  within  the 
power  given  a  married  woman  by  the  statute,  and  she  must 
judge  for  herself  whether  or  not  it  is  for  her  interest  to 
give  it.53 

Where  a  married  woman  gives  her  promissory  note  for  the 
debt  of  another  person,  and  secures  the  payment  of  the  note  by 
a  mortgage  on  her  separate  property,  the  note  is  void,  but  the 
mortgage  is  valid  to  the  extent  of  the  property  covered  by  it.54 

There  is  no  restriction  under  the  constitution  and  statutes 
of  this  state  which  will  prevent  a  married  woman  from  creating 
an  express  lien  on  her  property  for  any  lawful  purpose  that 
could  be  the  foundation  for  such  action  by  an  unmarried 
woman  or  a  man.  In  such  a  case,  while  the  contracting  of  an 
express  lien  against  her  individual  property  may  not  be  for  her 
benefit  or  the  benefit  of  her  separate  property,  it  is  such  a 

50.  Hough  ton    v.    Melburn,     54  Bank,   39   Mich.    671;    Tillman   v. 
Wis.  554,  11  N.  W.  517,  12  N.  W.  Shackelton,  15  Mich.  447;  Watson 
23.  v.  Thurber,  11  Mich.  457;  Frakee 

51.  C.  L.  '15.  (11485);  Howell,  v.   Downer,  35  Mich.   151;    Wine- 
L'ncl.  Ed.,  §11545.  man  v.  Phillips,  93  Mich.  223,  53 

r.i'.     Damon  v.  Deeves,  57  Mich.  N.  W.  168. 

247,  23  N.  W.  798.  54.     Damon  v.  Deeves,  67  Mich. 

53.     West  v.  Laraway,  28  Mich.  247,  23  N.  W.  798. 
464;     Russell     v.     Peoples'     Sav. 

135 


§175  CONTRACTS  OF   MARRIED   WOMEN 

contract  as  the  statute  expressly  empowers  her  to  make  "with 
the  like  effect  as  if  she  was  unmarried." 

Where  the  contract  of  a  married  woman  is  directly  for  the 
benefit  of  her  separate  property,  she  may  not  only  create  a  lien 
on  such  property,  but  may  make  herself  personally  liable  the 
same  as  an  unmarried  woman  or  man. 

Where  a  debtor  voluntarily  conveys  all  of  his  property  to  his 
wife,  and  the  wife,  to  relieve  herself  from  the  attack  of  creditors 
on  property  so  conveyed,  gives  her  individual  note  for  her 
husband's  debt,  it  is  for  the  benefit  of  her  separate  property 
and  she  is  personally  liable  on  the  note.55  When  the  note  was 
given  the  property  conveyed  was  the  separate  property  of  the 
wife  under  a  deed,  valid  as  against  the  husband,  and  hence  the 
giving  of  the  note  by  the  wife  to  relieve  the  property  from  the 
attack  of  creditors  was  directly  for  the  benefit  of  her  separate 
property. 

55.     Whelpley  v.  Stoughton,  112  Mich.  594,  70  N.  W.  1098. 


136 


CHAITKK  XVIII. 

CONVKYAXVKS    AM)   CONTRACTS   TO    rnXVKY    KKAL 
OR  PERSONAL  1MJ<  U'KKTY. 


§176.  Statutory  Provisions. 

8177.  Consideration. 

§178.  Joinder  of  Husband. 

§179.  What  Law  Governs. 

§180.  Gift  by  Wife  to  Husband. 

§181.  Covenants  on  the  Part  of  a  Married  Woman. 

§182.  Consent  of  Husband  to  Sale  of  Wife's  Property. 

§183.  Same  Subject  Continued. 

§184.  Conveyance  of  Husband  or  Wife  to  or  for  Each  Other. 

§185.  Conveyance  of  Undivided  One-Half  Interest  by  Husband  to  Wife. 

§186.  Conveyance  of  Land  Held  by  Husband  and  Wife  by  Entirety. 

§176.     Statutory  Provisions. 

The  married  women's  act  of  1855  belongs  to  a  class  of 
remedial  statutes,  ;iml  as  such  has  always  been  liberally  con- 
strued. Contracts  made  by  married  women  for  the  purchase  of 
property  on  credit  have  been  sustained,  where  the  credit  was 
given  to  the  wife  alone,  although,  perhaps,  they  mi  til  it  not  t 
come  strictly  within  the  terms  of  the  statute.  The  statute 
expressly  provides  that  all  real  and  personal  property  of  a 
married  woman  "may  be  contracted,  sold,  transferred,  mort- 
gaged, conveyed,  devised  or  bequeathed  by  her.  in  the  same 
manner  and  with  the  like  effect  as  if  she  were  nnmarrie.i 

While  the  statute  does  not  expressly  state  that  such  prop- 
erty may  lie  "bought  by  hei"  in  the  same  manner  ami  with  tin- 
like  effect  as  if  she  were  unmarried,  a  construction  which, 
would  exclude  her  from  such  privilege  would  violate  the  time- 
honored  rule  that  remedial  statutes  must  be  liberally  con- 
strued.2 

§177.     Consideration. 

The  payment  of  a  husband's  debt  is  a  sufficient  consideration 

1.  C.  L.  '15,   (11485);    Howell,       Mich.  259;  Tillman  v.  Shackelton, 
2nd.  Ed.,  §11545.  15    Mich.    447;    Burdeno    v.    Am- 

2.  DeVires      v.      Conklin,      22      perse,  14  Mich.  97. 

137 


§178  CONVEYANCES 

for  a  deed  by  his  wife.  It  is  competent  for  a  married  woman 
to  deed  her  property  to  whom  she  chooses,  and,  though  it  is 
security  for  or  in  payment  of  her  husband's  debt,  the  deed  is 
valid.3 

§178.     Joinder  of  Husband. 

A  married  woman  who  is  a  guardian  can  convey  the  real 
estate  of  her  ward  without  her  husband  joining  in  the  deed.* 
A  married  woman  may  convey  land  owned  by  her  in  fee,  but 
occupied  by  herself  and  husband  as  a  homestead,  without  the 
husband  joining  the  deed  of  conveyance.  The  constitution 
and  the  married  women's  act  of  1855  confer  upon  married 
women  such  absolute  right  to  the  disposition  of  their  own 
separate  property  that  she  may  convey  such  homestead  by 
deed,  without  the  husband  joining  in  the  instrument.5 

§179.     What  Law  Governs. 

The  disposal  of  the  separate  real  estate  of  a  married  woman 
may  be  valid  under  the  law  of  the  state  where  the  property  is 
situated,  although  she  may  be  incapacitated  to  make  such  con- 
veyance by  the  laws  of  her  domicile.6 

With  reference  to  the  transfer  of  the  personal  property  of 
a  married  woman,  the  law  of  the  state  where  the  contract  is 
made  applies.7 

§180.     Gift  by  Wife  to  Husband. 

A  wife  may  make  a  gift  of  her  property  to  her  husband; 
but  when  he  claims  that  a  gift  has  been  made,  the  burden  of 
proof  is  upon  him  to  establish  it.8 

But  a  gift  or  a  purchase  from  a  wife  to  her  husband  or  from 

3.  Le  May  v.  Wickert,  98  Mich.       (Mich.)  433,  47  Am.  Dec.  41. 

628,   57    N.   W.    827;    Keildsen    v.  5.     Buckingham      v.       Bucking- 

Blodgett,  113  Mich.  655,  72  N.  W.  ham,  81  Mich.  89,  45  N.  W.  504. 

9;  Pratt  Land  Co.  v.  McClain,  135  6.     21   Cyc.   1499;    Thompson  v. 

Ala.  452,  33  So.  185,    93    Am.    St.  Kyle,   39   Fla.-  882,    23    So.   12,    63 

35;  Collins  v.  Wassell,  34  Ark.  17;  Am.  St.  R.  193. 

Nichols    v.    Hayes,    20    Ind.    App.  7.     21     Cyc.     1499;    Clanton    v. 

369,  50  N.  E.  768;   Stone  v.  Mont-  Barnes,    50    Ala.     260;     Drake    v. 

gomery,  35  Miss.  83;   Sapiro's  Ap-  Clover,  30  Ala.  382. 

peal,  108  Pa.  St.  377;   Steinnegar  8.     Derfy   v.    McClurg,    6    Mich, 

v.  Steinnegar,  55  S.  C.  9,  33  S.  E.  223;    Plumman  v.   Perce,   9  Mich. 

15;  Booker  v.  Wingo,  29  S.  C.  116,  509;    Wales   v.   Newbold,   9  Mich. 

7  S.  E.  49.  45;    Jenne    v.     Marble,     37    Mich. 

4.  Palmer  v.   Oakley,   2   Doug.  319. 


CONSENT  OF   HUSBAND  §18- 

\ 

a  husband  to  his  wife,  must  be  established  by  evidence  other 
thair  that  of  use  ;in<l  possession  by  permission.  So  held  where 
the  action  was  between  the  administrator  of  a  deceased  wife's 
estate  and  the  husband. 

Under  the  married  women's  act  of  1855  the  property  of  the 
wife  cannot  become  the  husband's  by  user,  or  by  the  simple 
possession  of  it  by  him.  The  object  of  the  statute  was  to 
prevent  such  results  and  to  abolish  the  common  law  rule 
respecting  the  marital  rights  of  the  husband  over  the  wife's 
property.9 

A  husband  cannot  acquire  the  property  of  his  wife  except 
by  gift  or  purchase  any  more  than  he  can  that  of  any  other 
person.  Such  gift  or  purchase  cannot  be  established  by  evi- 
dence of  use  and  possession  alone.10 

§181.    Covenants  on  the  Part  of  a  Married  Woman. 

Any  covenant  on  the  part  of  a  married  woman,  in  a  deed  for 
a  conveyance  of  land  that  is  not  her  individual  property,  is 
void,  and  any  covenant  in  which  she  joins  with  her  husband 
is  void  as  to  her,  leaving  it  the  sole  covenant  of  the  husband.11 

§182.    Consent  of  Husband  to  Sale  of  Wife's  Property. 

Prior  to  the  passage  of  the  married  women's  act  of  1855  it 
was  held  that  the  constitutional  provision  which  enables  a 
married  woman  to  "devise  or  bequeath"  her  property  as  if  she 
were  unmarried,  could  not  be  construed  to  authorize  her  to 
sell  and  dispose  of  such  property  without  the  consent  of  her 
husband.12  This  decision  appears  to  have  been  based  upon  the 
ground  that  while  the  constitution  expressly  empowers  a  mar: 
ried  woman  to  "devise  and  bequeath"  her  property  as  if  she 
were  unmarried,  it  does  not  in  terms  authorize  her  to  sell  and 
dispose  of  it  during  coverture,  and  that,  had  it  been  intended  •• 
to  enable  her  to  do  so,  the  framers  of  the  constitution  would 
have  manifested  such  intent  in  express  terms.  The  same  case 
also  held  that  the  rule  that  a  statute  in  contravention  of  the 
common  law  ought  not  to  be  extended  by  construction  applies 
equally  to  a  constitutional  provision  of  this  character. 

9.  White  v.  Zane,  10  Mich.  333.       170. 

10.  Wales  v.  Newbold,  9  Mich.          12.     Brown   v.    Fifield,   4   Mich. 
45.  322. 

11.  Hovey  v.   Smith,   22  Mich. 

t  139 


'§183  CONVEYANCES 

§183.     Same  Subject  Continued. 

The  facts  upon  which  the  foregoing  case  was  based,  however, 
arose  before  the  passage  of  the  married  women's -act  of  1855, 
which  does  expressly  authorize  a  married  woman  to  sell  her 
separate  property  during  coverture  without  the  consent  of  her 
husband.  Later  cases  have  held  that  the  statute,  as  well  as 
the  constitution,  is  remedial  and  should  be  liberally  construed, 
practically  overruling  the  case  above  cited,  which  placed  a 
strict  construction  on  the  constitutional  provision.13 

§184.     Conveyance  of  Husband  or  Wife  to  or  for  Each  Other. 

The  exemption  of  household  property  from  sale  or  mortgage 
without  the  consent  of  the  wife,  and  the  interest  in  such 
property  which  the  marital  relation  and  the  statute  create,  do 
not  prevent  a  division  of  the  property  by  the  husband  and 
wife,  nor  a  sale  or  release  of  her  interest  by  the  wife  to  the 
husband.14 

A  conveyance  of  land  made  by  a  husband  to  his  wife  with- 
out consideration,  no  fraud  being  shown,  will  not  be  rescinded 
because  the  wife  subsequently  deserts  him  and  refuses  to  re- 
turn to  him,  when  the  husband  is  himself  to  blame  for  such 
desertion  and  refusal  to  return.15 

§185.     Conveyance  of  Undivided  One-Half  Interest  by  Husband 
to  Wife. 

A  conveyance  by  a  husband  to  his  wife  of  an  undivided  one- 
half  interest  in  land  owned  by  him  does  not  create  such  an 
estate  that  on  the  death  of  her  husband  the  surviving  wife 
will  take  the  whole,  even  although  it  is  expressly  stated  in  the 
deed  of  conveyance  that  the  purpose  of  it  is  to  convey  to  the 
wife  such  an  interest  in  the  land  that  the  parties  thereto  will 
have  an  estate  in  entirety,  and  that  the  same  shall  survive  and 
vest  in  the  survivor  as  a  full  and  complete  estate.  At  common 
law,  in  order  to  create  an  estate  by  entirety,  there  must  be 
unity  of  time,  title  and  possession,  and  such  common  law  rule 
has  not  been  changed  by  statute.10 

13.  DeVires      v.      Conklin,     22       fler  v.  Whipfler,  163  Mich.  18,  116 
Mich.  259.  N.   W.   544,   16   L.   R.  A.   113,    117 

14.  Carpenter  v.  Carpenter,  154       N.  W.  213. 

Mich.  103,  117  N.  W.  598.  16.     Pegg    v.    Pegg,     165    Mich. 

15.  Purcell      v.      Purcell,      162       228,   130  N.  W.   617. 
Mich.  404,  127  N.  W.  310;    Whip- 

140 


I. AM)     IIKI.il    P.Y    KNTIKKTY  §18(5 

§186.     Conveyance   of  Land   Held  by  Husband   and  Wife  by 
Entirety. 

Where  laud  is  held  by  husband  and  wife  as  ;ui  estate  by 
entireties,  neither  ran  convey  his  or  her  interest  therein.  Hotn 
must  join  iu  order  to  divest  either  of  the  title.17  Where  a  wife 
iiave  a.  quit  claim  deed  of  her  interest  in  laud  held  by  herself 
and  husband  jointly  as  tenants  by  entireties,  and  received  a 
cash  payment  therefor  from  the  grantee,  it  was  held  that  no 
title  passed  to  the  grantee,  nor  could  he  claim  a  lien  on  tin- 
land  for  the  money  paid.  The  grantor  at  the  time  that  she 
uave  the  deed  had  no  title  or  interest  which  she  could  convey 
or  encumber  in  any  way. 

But  in  such  a  case,  where  the  grantor  filed  a  bill  in  chancery 
against  her  grantee  after  her  husband's  death  to  remove  the 
cloud  upon  her  title,  it  was  held  that  while  her  quit-claim  deed 
passed  no  title  and  created  no  equitable  lien  which  could  he 
enforced  by  the  grantee  for  the  money  which  she  had  paid, 
still,  as  a  condition  to  granting  the  relief  prayed,  the  grantor 
must  pay  back  the  money  which  she  had  received  for  her  quit- 
claim deed,  with  interest,  in  accordance  with  the  familiar  rule 
that  he  who  seeks  equity  must  do  equity.18 

While  it  is  the  general  rule,  and  has  been  uniformly  held  in 
this  state,  that  a  married  woman  cannot  be  held  personally 
liable  on  her  covenant  in  a  deed  or  mortgage  niade  jointly  by 
herself  and  her  husband,  she  is  liable  jointly  with  her  husband 
where  she  receives  the  entire  consideration  for  which  the  deed 
is  given.  In  such  a  case  the  wife's  covenant  is  not  as  surety 
for  her  husband,  but  she  is  contracting  for  property  which  is 
to  be  held  and  owned  by  her  as  her  separate  estate.10 

17.     Ernst  v.   Ernst,   178   Mich.  Am.  St.  594 

100,    144    N.    W.    513;    Vinton    v.  18.     Ernst™.   Ernst,   178   Mich. 

Beamer,  55   Mich.   559,   22   N.   W.  100.  144  N.  W.  513. 

40;    Louis   Appeal,   85   Mich.   340,  19.     Arthur      v.      Caverly,       98 

48  N.  W.  580;  Naylor  v.  Minnock.  Mich.  82,  56  N.  W.  1102. 
96    Mich.    182,    55    N.   W.    664,    35 


141 


CHAPTER  XIX 

ACTIONS 

§187.  Statutory  Provisions. 

§188.  Rights  of  Action  between  Husband  and  Wife. 

§189.  Action   by    a   Married   Woman   against   a    Firm   of   which   her 

Husband  is  a  Member. 

§190.  Actions  by  Wife   against  Husband. 

§191.  Actions  for  Torts. 

§192.  Action  by  Wife  for  Services. 

§193.  Action  by  Wife  for  Alienation  of  Husband's  Affections. 

§194.  Same   Subject:— Michigan   Statute. 

§195.  Same  Subject  Continued. 

§196.  Actions  by  Husband  for  Alienation  of  Wife's  Affection. 

§197.  Evidence  in  Action  for  Alienation  of  Affections. 

§187.     Statutory  Provisions. 

A  sewing  machine,  though  exempt  from  levy  and  sale  on 
execution,1  is  not  covered  by  the  ninth  subdivision  of  C.  L.  '15, 
(12858)  ;  Cummins  &  Beecher's  Judicature  Act,  §891.  which 
declares  that  any  chattel  mortgage,  bill  of  sale,  or  other  lien 
created  on  any  part  of  the  property  mentioned  in  said  Section 
12858,  except  subdivision  8,  shall  be  void  unless  signed  by  wife. 

Section  8692,  C.  L.  '97  (HoweU,  2nd  Ed.  §11547),  which 
authorizes  a  married  woman  to  sue  in  her  own  name  for 
exempt  property  seized  on  execution  against  her  husband, 
applies  only  where  property  is  taken  by  some  process  adver- 
sary to  the  husban^.  It  does  not  include  voluntary  sales  made 
by  the  husband,  but  includes  cases  only  where  the  property  is 
taken  by  some  process  adverse  to  his  interest.2 

§188.    Rights  of  Action  between  Husband  and  Wife. 

.  It  has  never  been  held  in  Michigan  that  a  husband  and  wife 
may  contract  generally  with  each  other  so  as  to  give  one  a 
right  'of  action  against  the  other  in  all  cases.  The  married 
women's  act  of  1855  does  not  abrogate  all  of  the  common  law 
rules  or  previous  statutes  restraining  married  women  from 

1.     C.    L.   '97,    (10359);    Howell,  2.     Singer  Mfg.  Co.  v.  Cullaton, 

2nd.  Ed.,  §13056,  repealed  by  the       90  Mich.   639,  51  N.  W.  687. 
Judicature  Act. 

142 


W1FK    Ai.AINSi      Ml   SKAND 

making  contracts,  uor  does  it  profess  to  change  tin-  powers  of 
husband  and  wife  to  deal  with  each  other,  except  so  l';ir  ;is 
such  change  is  implied.  It  gives  the  wife  no  power  to  contract . 
except  in  regard  to  her  separate  estate.  A  husband  cannot 
sue  his  wife  either  at  law  or  in  equity  to  enforce  a  purely 
executory  contract.  The  constitution  and  statute  are  clearly 
and  plainly  against  her  right  to  make  a  mere  personal  obliga- 
tion unconnected  with  her  separate  property  and  not  eharuinu 
it  in  any  way.8 

§189.    Action  by  a  Married  Woman  against  a  Firm  of  which  her 
Husband  is  a  Member. 

A  married  woman  may  maintain  an  action  at  law  against 
the  tirni  of  which  her  husband  is  a  member.  The  fact  that  the 
obligation  upon  which  suit  is  brought  is  a  joint  obligation  of 
the  husband  ami  others  does  not  deprive  the  wife  of  her 
remedy  in  a  court  of  law.4 

Where  a  wife  sues  the  linn  of  which  her  husband  is  a  mem 
ber,  impleading  him  as^a  defendant,  and  calls  him  as  a  witiu'ss 
in  her  behalf,  his  consent  to  her  testifying  for  herself  and 
against  him  as  a  defendant  is  presumed  if  he  is  present  in 
court  and  makes  no  objection.3 

But  if  the  wife  is  not  present  in  court,  the  failure  of  her 
attorney  to  object  to  the  testimony  of  her  husband  against  her 
cannot  be  treated  as  the  consent  of  the  wife.0 

§190.    Actions  by  Wife  against  Husband. 

Where  a  wife  is  living  separate  and  apart  from  her  Husband, 
and  he  has  in  his  possession  personal  property  belonging  to 
her,  she  may  maintain  an  action  of  replevin  against  him  for 
such  property  if  lie  refuses  to  deliver  it  to  her  on  demand,7 

A  wife  may  sue  her  husband  for  money  which  she  loans  him 
to  use  in  his  business.8 

A  husband  may  secure  an   injunction   restraining  his  wife 

3.  Jenne   v.    Marble,   37    Mich.      77.  14  N.  W.  705. 

319;  DeVires  v.  Conklln,  22  Mich.  5.     Benson  v.  Morgan,  50  Mich. 

255;   West  v.   Laraway,   28   Mich.  77,  14  N.  W.  705. 

464;    Emory   v.    Lord,     26     Mich.  H.     Hubbell   v.   Grant,  39  Mich. 

431;  Lapworth  y.  Leach,  79  Mich.  641. 

16,  44  N.  W.  338.  7.     White    v.    White,    58    Mich. 

4.  Moore   v.     Foote.    34    Mich.  546,   25    N.    \V.    490. 

443;  Osborne  v.  Osborne,  36  Mich.  8.  Letts  v.  Letts,  73  Mich.  138, 
48;  Benson  v.  Morgan,  50  Mich.  41  N.  W.  99. 

143 


§191  ACTIONS 

from  running  a  business  in  competition  with  »him  and  his 

business.9 

§191.    Actions  for  Torts. 

At  common  law  neither  husband  nor  wife  can  bring  an  action 
against  the  other  for  purely  personal  torts.10  And,  unless 
expressly  authorized  so  to  do  by  statute,  no  action  can  be 
maintained  by  either  husband  or  wife  against  the  other  for 
injury  to  the  person  or  character.  Thus  it  has  been  held  that 
the  wife  cannot  sue  her  husband  for  slander,11  nor  for  assault 
and  battery.12 

The  dissolution  of  the  marriage  by  absolute  divorce  does 
not  permit  the  wife  to  sue  her  husband  or  the  husband  to  sue 
his  wife  for  a  tort  committed  upon  him  or  her  before  the  dis- 
solution of  the  marriage.13 

Under  the  married  women's  act,  however,  a  wife  may  sue 
her  husband  for  wrongs  done  her  separate  property  by  him.14 
She  may  bring  replevin  against  ber  husband,1-  and  the  husband 
may  also  bring  replevin  agamst  his  wife.10  Either  the  hus- 
band or  wife  may  sue  the  other  in  trover  for  conversion.17 

A  husband  cannot  maintain  a  suit  against  his  wife  for 
damages  for  deceit  practiced  by  her  against  him  by  which  he 
was  induced  to  marry  her.18  But  where  a  man  was  induced  to 
marry  a  woman  by  false  representations  made  to  him  by  one 
who  knew  that  she  was  pregnant,  and  the  man  making  such 
false  representations  was  the  author  of  such  pregnancy,  while 
the  husband  cannot  maintain  an  action  against  his  wife  for 
her  deceit,  he  can  maintain  an  action  against  the  man  whose 
false  representations  induced  him  to  consummate  the  mar- 
riage.19 

9.  Root     v.     Root,     164     Mich.       111.    346;    Larison    v.     Larison,     9 
,638,  ISO  N.  W.  194.  111.   App.   27. 

10.  21  Cyc.  1519.  15.     Jones  v.  Jones,  19  la.  236; 

11.  Fratley     v.      Fratley,      42  White  v.  White,  58  Mich.  546,  25 
Barb.   (N.  Y.)    641.  N.  W.   490. 

12.  Abhott  v.   Abbott,    67    Me.  i6-     Carney     v.     Gleissner,     26 
304,   24  Am.    R.    27;     Schultz    v.  Wis_  493)  22  N.  W.  735. 
Schultz,  89  N.  Y.  644.  17      Whitney     v     Whitney      49 

•0  >  -       "  *  WMWMWi      -±0 


10        91       Pvr>       1^9ft-       "Pptprq      v 

v' 


Barb.    (N.   Y.)     319;     Ryerson    v. 
' 


.         .      . 

Peters,  42  la.  182;  Libby  v.  Berry,  o--.!^    o  M   Y  o'        700 

74   Me.    286,   43  Am.   R.   589;    Ab-  R*eBrBO":  8 

bott  v.  Abbott,  67  Me.  304,  24  Am.           18-     Kujeck  v.  Goldman,  150  N. 

R.  27;  Lougardyke  v.  Lougardyke,  Y.  179,  44  N.  E.   733    55  Am.   St. 

44  Barb.    (N.  Y.)    366;    Nickerson  R-  670>  *     L-  R-  A-  156- 

v.  Nickerson,  65  Tex.  281.                          19.     Kujeck  v.  Goldman,  150  N. 

14.     Chestnut    v.    Chestnut,    77  Y.   176,  34  L.  R.  A.  156. 

144 


M  im  K;AN  STATUTES  ox  ALIENATION  jil'.M 

§192.     Action  by  Wife  for  Services. 

The  legal  presumption  is  that  the  services  of  a  wife  are 
giveii  for  the  benefit  of  her  husband  and  in  his  interest;  and 
where  she  is  working  with  her  husband,  if  sin-  makes  a  separate 
claim  for  her  individual  services,  she  must  not  only  show  that 
her  services  were  given  with  the  consent  of  her  husband,  but 
that  the  party  for  whom  her  services  were  rendered  so  under- 
stood it.20 

When  the  husband  supports  the  family,  his  wife  rannot 
maintain  an  action  for  her  services  without  proof  of  the  hus- 
band's eonsiMit  and  of  his  relinquishment  to  her  of  his  rights 
to  her  services.21 

§193.    Action  by  Wife  for  Alienation  of  Husband's  Affections. 

The  right  of  a  married  woman  to  maintain  an  action  for 
alienation  of  her  husband's  affections  has  been  seriously  ques- 
tioned in  the  past. 

In  the  adjudicated  cases  there  seems  to  be  a  difference  of 
opinion  as  to  her  common  law  rights  ro  maintain  such  action. 
It  has  been  contended,  and  some  courts  have  held,  that  as  the 
wife  had  no  right  of  property  at  common  law  in  any  damages 
recovered  on  her  account,  for  any  cause,  she  could  have  no 
right  of  action  to  recover  such  damap-. 

In  Kew  York  it  is  held  that  it  was  considered  at  common 
law  that  damages  for  personal  injuries  belong  to  the  wile, 
because  the  husband  could  not  sue  without  joining  her.  If  the 
damages  were  recovered  before  the  death  of  the  husband,  the 
money  collected  became  his  property;  but  if  he  died  bH'nre 
the  action  was  determined,  the  right  of  action  survived  to  the 
wife.  From  this  it  was  deduced  that  the  right  of  action  be- 
longed to  the  wife.23  This  would  seem  to  be  a  cnrrtvi  position. 
because  it  could  hardly  be  contended  that  the  husband  nniM 
maintain  an  action  for  his  own  wrongful  act. 

§194.    Same  Subject: — Michigan  Statute. 

The  question  of  a  right  of  a  married  woman  to  maintain  an 

20.  Mason  v.  Dunbar,  43  Mich.  374,   45   N.   W.    523;    Westlake  v. 
407,  5   N.  W.   432;   Herall  v.  Me-  Westlake,  34  Ohio  St.  621;  Doe  v. 
Cabe,    171   Mich.    530,   137   N.   W.  Roe,  82  Me.  503,  20  Atl.  83;  Logan 
237.  v.  Logan,  77  Ind.  558;  Mehroff  v. 

21.  Barnes    v.    Moore,    Estate,  Mehroff,  26  Fed.  13. 

86  Mich.  585,  49  N.  W.  585.  23.     B.ennett  v.  Bennett,  116  N. 

22.  Duffles   v.   Duffles,  76  Wis.      Y.   584,  23  N.  E.  171. 

145 


§195  ACTIONS 

action  for  damages  for  the  alienation  of  her  husband's  affec- 
tions was  first  raised  in  Michigan  in  the  case  of  Mitchell  v. 
Mitchell,  49  Mich.  68,  12  N.  W.  914.  In  that  case  the  plaintiff 
charged  the  defendant,  who  was  the  father  of  her  husband, 
with  persuading  the  latter  to  desert  her,  and  with  contriving 
to  alienate  and  destroy  his  affection  for  her.  On  the  trial  the 
circuit  judge  directed  a  verdict  for  the  defendant.  The  case, 
was  appealed  to  the  supreme  court  and  the  judgment  of  the 
lower  court  affirmed  by  equal  division.  No  opinion  was  filed 
and  the  case  does' not  seem  to  have  been  considered  as  an  ad- 
judication of  the  question. 

It  lias  been  held,  however,  that  a  married  woman  may  main- 
tain an  action  in  her  individual  name,  without  joining  her 
husband,  where  an  assault  and  battery  is  committed  on  her,-4 
and  for  slander,25  and  in  such  cases  the  damages  recovered 
become  her  individual  property;  and  there  would  seeni  to  be 
no  good  reason  for  denying  her  the  same  rights  where  by  the 
wrongful  act  of  another  she  is  deprived  of  the  affection,  society 
and  support  of  her  husband.  Among  the  reasons  given  in 
those  cases  which  hold  that  at  common  law  a  wife  cannot 
maintain  an  action  for  alienation  of  her  husband's  affections, 
or  for  the  consequent  loss  of  his  society,  is  the  wife's  lack  of 
any  property  right  in  the  affection  and  companionship  of  her 
husband,  and  her  incapacity  to  sue  alone,  and  because  the 
husband  should  not  be  permitted  to  join  with  her  to  redress  a 
wrong  in  which  he  participated. 

It  has  been  contended,  however,  and  it  would  seem  with  good 
reason,  that  in  respect  of  conjugal  society  and  affection,  the 
husband  owes  to  the  wife  all  that  she  owes  to  him,  and  that 
upon  principle  the  wife's  right  to  the  companionship  and 
affection  of  her  husband  is  a  property  right,  and  as  valuable 
to  her  as  is  the  husband's  right  to  him.26 

§195.     Same  Subject  Continued. 

Whatever  may  have  been  the  common  law  rule,  however, 
under  the  authority  of  the  Michigan  statute  and  modern  legis- 
lation generally,  enabling  married  women  to  sue  generally  and 
securing  to  them  their  separate  property  rights,  the  wife  may 
sue  for  the  alienation  of  the  husband's  affection  and  the  loss 
of  his  society.27  In  Michigan  the  right  of  a  married  woman  to 

24.  Berger  v.  Jacobs,  21  Mich.          26.     21    Cyc.    1617     and     cases 
215.  cited. 

25.  Leonard  v.   Pope,  27  Mich.  27.     Humphrey     v.     Pope,     122 
145.                                                              Cal.    253,    54   Pac.    847;    Williams 

146 


EVIDENCE    IN    ACTION    FOR   ALIENATION  §197 

maintain  an  action  for  damages  for  the  alienation  of  her  hus- 
band's affection,  and  for  consequent  loss  of  support  and  main 
tenance,  is  no  longer  open  to  question.28 

$196.    Action  by  Husband  for  Alienation  of  Wife's  Affection. 

The  right  of  a  husband  to  maintain  an  action  for  alienation 
of  his  wife's  affection  and  for  damages  for  the  loss  of  her 
society  and  services  is  recognized  both  at  common  law  and 
under  the  statute  of  several  states  relating  to  the  rights  of 
husband  and  wife.  All  of  the  cases  which  deny  this  right  to 
the  wife,  as  well  as  most  of  those  whicli  recogni/e  and  enforce 
sndi  right,  maintain  a  right  of  action  in  the  husband. 

§197.    Evidence  in  Action  for  Alienation  of  Affections. 

By  the  common  law  a  wife  is  absolutely  incompetent  as  a 
witness  for  or  against  her  husband,  but  the  rule  has  been 
modified  by  statute  so  far  as  to  make  her  competent  in  rase 
ot  his  consent,  and  leaving  him  perfectly  free  to  give  or  with 
hold  such  consent. 

But  in  an  action  by  a  husband  for  alienation  of  his  wife's 
affection,  letters  written  by  the  wife,  tending  to  show  her 
affection  for  her  husband,  are  admissible  for  the  purpose  of 

v.  Williams,  20   Colo.  51,  37  Pac.  kinson    v.    Hodgkinson,    43    Neb. 

614;     Betset    v.    Betser,    186    111.  268,    61    N.    W.    577,   27   L.    R.    A, 

537,  58  N.  E.  249,  78  Am.  St.  R.  120;    Bennett   v.   Bennett,    116   N. 

303,  52   L.   R.  A.   630;    Holmes  v.  Y.   584,   23    N.   E.    17,   6   L.  R.   A. 

Holmes,    133    Ind.    386,   32   N.    E.  553;     King     v.     Hanson,    — ,     N. 

932;    Wolfe    v.    Wolfe,    1.30    Ind.  Dak.  — ,  99    N.    W.    1085;   West- 

599,  30  N.  E.  308 ;  Haynes  v.  Now-  lake   v.    Westlake,   34   O.    S.    621, 

lin,   129   Ind.   581,   29   N.   E.    389,  32  Am.   R.   397;    Gernard  v.   Ger- 

49  L.  R.  A.  787;    Price  v.  Price,  nard,  185  Pa.  St.  333,  39  Atl.  884, 
91   la.    693,   60   N.   W.    202,   29    L.  40  L.  R.  A.  549;  Hestler  v.  Hest- 
R.  A.   150;   Nevins  v.   Nevins,   68  ler.  80   Tenn.  270,  12  S.  W.   446; 
Kan.  416,  75  Pac.   492;   Deitzman  Knapp  v.  Wing,  72  Vt.  334,  47  Atl. 
v.  Mullin,  108  Ky.  610,  57  S.  W.  1075;    Beach  v.  Brown,  20  Wash. 
247,  50  L.  R.  A.  808;  Rice  v.  Rice,  266,  55  Pac.  46,  43   L.  R.  A.  114; 
104    Mich.    371,   62    N.    W.     883;  Ashe    v.    Pennier,    105    Fed.    722, 
Warren  v.  Warren,  89  Mich.  123,  44  C.  C.  A.  675;  Waldron  v.  Wald- 

50  N.   W.   842,   14   L.   R.  A.   545;  ron,  45  Fed.  315;  Merhoff  v.  Mer- 
Lockwood   v.   Lockwood,  74  Miss.  lioff,  26  Fed.  13. 

93,  19  So.  955,  32  L.  R.  A.   623;  28.     Warren      v.     Warren,      89 

Nichols   v.   Nichols,   147  Mo.   387,  Mich.  123,  50  N.  W.  842,  14  L.  R. 

48  S.  W.  947;  Nichols  v.  Nichols,  A.    545;    Rice   v.    Rice    104   Mich. 

134  Mo.  187,  35  S.  W.  577;   Clow  371.    62    N.   W.     883;     Metcalf    v. 

v.   Chapman,   125  Mo.   101,   28    S.  Tiffny,   106   Mich.   504,   64   N.   W. 

W.   328,  26   L.  R.   A.   412;   Hodg-  479.  ^ 

147 


§197  '       ACTIONS 

\  * 

showing  the  state  of  the  wife's  mind  and  affection  toward  her 
husband.29 

But  where  there  is  no  evidence  of  misconduct  on  the  part  of 
the  defendant,  the  state  of  the  wife's  mind  and  affection  to- 
wards her  husband  is  immaterial  and  her  letters  ought  not  to 
be  admitted  until  such  misconduct  is  shown.30 

In  an  action  by*  a  husband  for  simply  enticing  away  his  wife, 
it  is  not  competent  for  the  plaintiff  to  shoAV  that  the  defendant 
has  had  illicit  intercourse  with  her.31 

29.  Perry  v.  Lovejoy,  49  Mich.       172,  10  N.  W,  188. 

529,  14  N.  W.  485.  31.     Perry  v.  Lovejoy,  49  Mich. 

30.  White   v.   Ross,    47     Mich.       529,  14  N.  W.  485. 


148 


PART  THREE 
DIVORCE 


PAKT  THREE— DIVORCE. 


Chapter  XX. 

Chapter  XXI. 

Chapter  XXII. 

Chapter  XXIII. 

Chapter  XXIV. 


Chapter 
Chapter 
Chapter 
Chapter 
Chapter 
Chapter 
Chapter 


XXV. 

•  XXVI. 

XXVII. 

XXVIII. 

XXIX. 

XXX. 

XXXI. 


Chapter    XXXII. 


Introduction  to  Divorce. 

Divorce  Laws  of  Different  Countries. 

Causes  Authorizing  Divorce  and  the  Pro- 
cedure in  the  Different  States. 

Divorce  and   Annulment   of  Marriage   in 
Michigan. 

Causes  for  Divorce  from  Bonds  of  Matri- 
mony. 

Causes  for  Absolute  Divorce :  Continued. 

Causes  for  Absolute  Divorce:  Continued. 

Causes  for  Absolute  Divorce:  Continued. 

Causes  for  Absolute  Divorce:  Continued. 

Causes  for  Absolute  Divorce:  Continued. 
Divorce  from  Bed  and  Board. 

General  Provisions  in  Actions  for  Divorce 
and  Annulment  of  Marriage. 

General  Statutory  Provisions  Concerning 
Husband  and  Wife. 


CHAPTER  XX. 

INTRODUCTION  TO  DIVORCE. 

§198.  General  Views. 

§199.  Local.  Legislation. 

§200.  Divorce  Tribunals. 

§201.  Legislation  on  the  Subjects  of  Marriage  and  Divorce. 

§202.  Legislative  Divorces. 

§203.  Same  Subject  Continued. 

§204.  Judicial  Divorce. 

§205.  Limited   Divorce. 

§206.  Moral  Effects  of  Limited  Divorce. 

§207.  Marriages  Void  without  Divorce. 

§208.  Consent  Obtained  by  Force  or  Fraud. 

§209.  Decrees  Annulling  or  Afflr.ming  Marriages. 

§198.    General  Views. 

All  ci\  ili/.cil  nations  have  provided  by  law  certain  formal 
proceedings  for  the  dissolution  of  the  marriage  relation.  The 
necessity  for  this  seems  to  be  recognized  everywhere.  Laws 
on  this  subject  constantly  ^ivc  rise  to  interesting  and  earnest 
discussion,  and  frequently  to  difficult  and  perplexing  qi na- 
tions. 

In  the  United  States  there  is  a  growing  and  dangerous 
laxity  in  legislation  as  to  the  permanency  ofx  the  marriage 
relation,  and  one  does  not  have  to  seek  far  to  find  the  cause. 

One  reason  for  this  condition  appears  to  be  our  universal 
tendency  to  greater  social  freedom  between  the  sexes;  and 
another  the  existence  of  nearly  fifty  independent  jurisdictions, 
which  enables  people  to  travel  from  one  state  to  another  to 
find  facilities  for  divorce  and  remarriage  which  tin-  law  of 
their  own  state  does  not  afford. 

Such  a  state  of  things  cannot  safely  be  favored  by  any 
public  policy;  but  the  law  sometimes  permits  ir,  if  for  no 
other  reason  than  that  an  adequate  remedy  i-.  wanting  to 
check  or  prevent  the  evil. 

§199.    Local  Legislation. 

Again,  there  is  a  strong  rurrent  of  local  legislation  in  this 
country  tending  to  a  multiplicity  of  causes  for  divorce,  even 

151 


§200  INTRODUCTION   TO  DIVORCE 

down  to  such  pretexts  as  incompatibility  of  temper.  ,  So  loose 
aiid  confusing  are  our  state  laws,  and  so  different  as  to  causes 
for  divorce,  on  the  subjects  of  both  marriage  and  divorce,  that 
there  has  grown  up  in  all  parts  of  the  country  a  considerable 
degree  of  public  opinion  that  the  cause  of  morality  would  be 
promoted  by  an  amendment  to  the  federal  constitution,  plac- 
ing the  whole  subject  in  the  control  of  Congress,  thus  insuring 
uniform  laws  throughout  the  country. 

§200.    Divorce  Tribunals. 

Divorce  tribunals  should  be,  and  generally  are,  a  shield  to 
the  public  conscience,  at  least  to  the  extent  that  a  decree  of 
divorce  should  be  denied  whenever  there  is  reason  to  believe 
that  there  is  collusion  between  the  parties,  and  unless  the 
complaining  party  makes  out  a  clear  case,  whether  the  appli- 
cation is  opposed  or  not. 

§201.    Legislation  on  the  Subjects  of  Marriage  and  Divorce, 

Marriage,  as  creating  the  most  important  relation  in  life, 
and  having  more  to  do  with  the  morals  and  civilization  of  a 
people  than  any  other  institution,  has  always  been  more  or 
less  subject  to  the  control  of  legislative  bodies.  The  legislature 
prescribes  the  age  at  which  marriage  may  be  contracted  and 
consummated,  the  procedure  or  form  essential  to  constitute 
marriage,  the  duties  and  obligations  the  marriage  relation 
creates,  its  effects  upon  the  property  rights  of  the  parties, 
present  and  prospective,  and  the  acts  which  may  constitute 
grounds  for  its  dissolution.1 

§202.    Legislative  Divorces. 

Unless  prohibited  by  constitutional  provisions,  the  legisla- 
tures of  the  several  states  may  grant  divorces.  In  Michigan, 
however,  this  power  is  denied  to  the  legislature  by  the  con- 
stitution.2 

Tn  1849,  the  legislature  of  Michigan  passed  an  act  which 
specially  authorized  the  Circuit  Court  of  St.  Joseph  County 
to  grant  a  decree  of  divorce  to  James  M.  Teft  from  his  wife. 
Sally  Teft,  provided  it.  should  be  made  to  appear  satisfactorily 
that  the  said  Sally  Teft  had  been,  for  the  term  of  five  years 
preceding  the  time  of  filing  the  petition  or  bill,  and  still  con- 
tinued to  be,  hopelessly  and  incurably  insane.3  There  was  no 

1.     Maynard  v.   Hill,  125  U.   S.  2.     Const*.,  Art.  IV,  Sec.  32. 

205,  L.  Ed.  657,  Book  35.  3.     Laws  of  1849,  P.  243. 

152 


LEGISLATIVE  DIVOI  §203 

general  I;i\v  of  (lie  state  authorizing  divon--  on  the  ground  of 
insanity.  and  both  the  const  it  nt  ion  of  iSi'.C.  which  was  in  force 
when  tin-  law  was  enacted,  and  that  of  1S."»1.  in  force  when  the 
decree  was  granted,  prohibited  divorces  by  the  legislature.  The 
provision  in  the  constitution  of  is:;r,  was:  "iMvon-e  shall  not 
be* granted  by  the  legislature,  lint  the  legislature  may  by  law 
authorize  the  higher  courts  to  grant  them  under  such  restric- 
tions  as  they  may  deem  expedient."4 

On  appeal  to  the  Supreme  Court  from  the  derive  of  the 
Circuit  Court  of  St.  Joseph  County  granting  a  decree' of 
divorce,  it  was  held  that  the  statute  in  question  was  in  efl'ect 
the  granting  of  a  divorce  by  the  legislature,  in  a  particular 
case  and  for  a  particular  cause  for  which  no  general  law  of 
1he  slate  authorized  a  divorce  to  be  granted,  and  was  there- 
fore unconstitutional,  and  the  decree  of  the  lower  court  was 
reversed.5 

The  case  of  Teft  vs.  Teft,  which  does  not  appear  ever  to  have 
been  questioned,  seems  to  establish  the  law  of  Michigan,  ever 
since  the  formation  of  the  state  government,  to  be  that  the 
legislature  may  authorize  certain  courts  to  grant  divorces 
generally,  designate  the  courts  to  which  such  authority  is 
given,  and  declare  by  general  law  the  causes  for  which  such 
courts  may  grant  decrees  of  divorce. 

§203.    Same  Subject  Continued. 

fiut  the  legislature  can  neither  grant  divorces  by  legislative 
enactment,  in  particular  cases,  nor  authorize  the  courts  to  do 
so  for  a  particular  cause,  for  which  no  general  law  of  the 
state  authorizes  a  divorce  to  be  granted.  Many  of  the  other 
states  have  constitutional  provision  more  or  less  similar  to 
that  of  Michigan. 

In  New  Hampshire  it  is  held  that  a  statute  which  attempts 
to  confer  authority  upon  the  court  to  grant  a  divorce  for 
matters  already  past,  and  which  at  the  time  they  occurred 
furnished  no  ground  for  a  dissolution  of  the  marriage,  or  for 
other  legal  proceedings,  is  a  retrospective  law  for  the  decision 
of  a  civil  cause  and  therefore  unconstitutional.6 

In  Illinois  hereditary  insanity  evinced  before  marriage  and 
iMiknown  to. the  husband,  affords  no  ground  for  divorce.7 

In  Kentucky  it  has  been  held  that  an  act  of  the  legislature 
divorcing  husband  and  wife,  acquiesced  in  by  both  partie-.  i- 

4.  Const  1836,  Art.  XII,  Sec.  5.          1.    Birkby    v.    Birkby,    15    111. 

5.  Teft  v.  Teft,  3  Mich.  67.  120. 

6.  Clark  v.  Clark.  10  N.  H.  380. 

153 


§204  INTRODUCTION   TO  DIVORCE 

not  an  exercise  of  judicial  authority.8  In  Maine  it  is  held 
that  a  divorce  by  act  of  the  legislature  is  valid,  in  a  case  of 
which  the  courts  under  existing  laws  have  no  jurisdiction.'1 
The  same  rule  prevails  in  Maryland.10  In  Missouri  a  divorce 
by  the  legislature  is  unconstitutional.11  In  Ohio  the  legis- 
lature has  no  power  to  grant  divorces,  but  to  avoid  rendering- 
children  of  second  marriages  illegitimate,  the  courts  have  held 
legislative  divorces  valid.12 

In  Illinois  and  Wisconsin  the  legislature  is  prohibited  by 
constitutional  provisions  from  special  legislation  for  the 
granting  of  divorces.13 

In  Michigan  legislative  divorces  have  been  prohibited  in 
every  constitution  since  the  organization  of  the  state  govern 
ment.  The  whole  authority  to  grant  divorces  is  vested  in  the 
circuit  and  supreme  courts.  Original  jurisdiction  is  vested 
exclusively  in  the  several  circuit  courts  in  chancery,  with 
appellate  jurisdiction  in  the  supreme  court. 

§204.    Judicial  Divorce. 

A  judicial  divorce  is  the  judgment  or  decree  of  a  court  of 
competent  jurisdiction,  wholly  or  partially  dissolving  a  mar- 
riage. 

A  divorce  may  be  either  absolute  or  limited.  An  absolute 
divorce  is  the  decree  of  a  court  of  competent  jurisdiction, 
terminating  an  existing  marriage  relation  of  husband  and 
wife,  freeing  the  parties  from  the  marriage  bond  and  restor- 
ing both  to  the  status  of  a  single  person.  A  partial  or  limited 
divorce  does  not  dissolve  the  marriage  tie.  It  is  a  mere  legal 
separation,  a  divorce  from  bed  and  board  only,  simply  free- 
ing the  innocent  party  from  the  presence  and  control  of  the 
guilty  one. 

§205.    Limited  Divorce. 

A  limited  divorce  neither  dissolves  the  marriage  nor  gives 
either  party  the  right  to  marry  again.  It  does  not  even  divest 
the  guilty  party  of  his  or  her  interest  as  husband  or  wife  in 
the  estate  of  the  other.14  It  is  no  defense  to  a  civil  or  criminal 
charge  of  adultery,  nor  to  an  indictment  for  bigamy. 

8.  Cabell    v.     Cabell,    1    Mete.       Mo.  187. 

(Ky.)   319.  12.     Bingham  v.  Miller,  17  Ohio 

9.  Adams  v.  Palmer,  51  Maine,       445. 

480.  13.     111.  Const.,  Art.  IV,  Sec.  22; 

10.  Wright  v.  -Wright,    2    Md.  Wise.  Const.,  Art.  IV,  Sec.  24. 
429.  14.     Keezer    on    Marriage    and 

11.  Brayson  v.  Brayson,  17  Mo.  Divorce,  Sec.  63,  P.   38;   Clark  v. 
590;   State  v.  Fry,  4  Mo.   120,  28  Clark,  6  Watts  &  S.    (Pa.)   85. 

154 


MARRIAGES    VOID    WITHOUT    DIVORCE  §207 

,  After  ;t  limited  divorce  has  IKHMI  granted  it  is  presumed  that 
relations  between  the  parties  have  ceased,  and  children  born 
thereafter  are  presumed  to  be  illegitimate  until  the  contrary 
is  shown.  But,  upon  satisfactory  proof  of  cohabitation  after 
the  decree  is  granted,  they  will  be  held  legitimate." 

§206.     Moral  Effects  of  Limited  Divorce. 

Limited  or  qualified  divorces  would  seem  to  be  somewhat 
In  xaidous  to  the  morals  of  the  parties.  They  are  thrown  back 
uj jon  society  in  the  undefined  and  dangerous  characters  of  a 
husband  without  a  wife  and  a  wife  without  a  husband.  They 
ii;ay  possibly  secure  a  judicial  settlement  of  matrimonial 
troubles  and  thus  -jive  an  innocent  wife  protection  from  a 
cruel  or  drunken  husband,  but  the  same  result  could  be  ob- 
i aiued  by  absolute1  divorce,  alimony,  and  a  restraining  order 
or  injunction,  and  leave  the  parties  in  a  much  better  position 
for  themselves  and  the  community. 

A  limited  divorce  or  legal  separation  deprives  the  parties 
to  the  marriage  of  the  rights  of  cohabitation  and  the  pre- 
n-eation  of  legitimate  children. 

In  speaking  of  divorce  from  bed  and  board  Mr.  Bishop  says: 
"This  proceeding,  neither  dissolving  the  marriage  nor  recon- 
ciling the  parties,  nor  yet  changing  their  natures:  having  at 
least  no  direct  sanction  from  scripture:  characterized  by  L<»n! 
Stowell  as  'casting  them  out  in  the  undefined  and  dangerous 
character  of  a  wife  without  a  husband  and  a  husband  without 
a  wife':  by  Judge  Swift  as  'placing  them  in  a  situation  where 
there  is  an  irresistible  temptation  to  the  comniissjou  of  adul- 
tery unlos  they  possess  more  frigidity  or  more  virtue  than 
usually  falls  to  the  share  of  human  beings';  by  Mr.  Baueroft 
as  'punishing  the  innocent  more  than  the  guilty';  by  a  late 
English  writer,  as  'a  sort  of  insult,  rather  than  satisfaction, 
to  any  man  of  ordinary  feelings  or  understanding* ; — is,  while 
destitute  of  justice,  one  of  the  most  corrupting  devices  ever 
imposed  by  serious  natures  on  blindness  and  credulity."1" 

§207.    Marriages  Void  without  Divorce. 

Statutes  of  different  countries  sometimes  provide  thai 
tain  marriages  are  void  without  decree  of  divorce.    The  Michi- 
gan statute  provides  that  all  marriages  which  are  prohibited 
by  law  on  account  of  consanguinity  or  affinity  between  the 
parties,  or  on  account  of  either  of  them  having  a  former  wife 

15.    2  Bishop  on  Marriage  and          16.    Bishop    on    Marriage    and 
Divorce.  Sec.  726-741.  Divorce,  Sec.  29. 

166 


§208  INTRODUCTION  TO  DIVORCE 

or  husband  then  living,  and  all  marriages  solemnized  when 
either  of  the  parties  is  insane  or  an  idiot,  shall  be  void  with- 
out any  decree  of  divorce  or  other  legal  process,  but  the  issue 
of  such  marriage,  except  where  one  of  the  parties  had  a  law- 
ful husband  or  wife  living  at  the  time  the  marriage  was  sol- 
emnized, is  declared  legitimate.  This  statute  applies  only  to 
marriages  solemnized  in  this  state.17 

§208.    Consent  Obtained  by  Force  or  Fraud. 

Statutes  quite  generally  provide,  also,  that  marriages  sol- 
emnized when  either  of  the  parties  was  under  the  age  of  legal 
consent,  if  they  separate  during  such  non-age  and  do  not  co- 
habit together  afterwards,  and  in  cases  where  the  consent  of 
one  of  the  parties  was  obtained  by  force  or  fraud  and  there 
has  been  no  subsequent  voluntary  cohabitation  of  the  parties, 
are  deemed  void  without  any  decree  of  divorce  or  other  legal 
process.18 

§209.    Decrees  Annulling  or  Affirming  Marriages. 

In  those  cases  where  the  statute  declares  certain  marriages 
void,  or  voidable,  provision  is  usually  made  for  proceedings 
to  annul  such  marriages.  It  is  also  quite  common  for  stat- 
utes to  provide  proceedings  to  affirm  a  marriage  where  its 
validity  is  denied  or  doubted  by  either  of  the  parties. 

There  is  a  clear  distinction  between  a  decree  of  divorce  and 
a  decree  of  nullity".  The  former  is  the  judgment  of  a  compe- 
tent tribunal  dissolving  a  legal  marriage;  the  latter  is  the 
judgment  o'f  a  competent  court  declaring  that  the  parties  to 
the  suit  were  never  legally  married,  and  restores  each  to  the 
status  of  an  unmarried  person.19 

17.  C.  L.  '15,   (11392) ;  Howell.  241   111.   279,  89   N.  E.   638,  25  L. 
2nd.   Ed.,    §11453;    In    re   Fitzgib-  R.  A.    (N.    S.)    578;    Montague  v. 
bons'   Est,   162   Mich.,   416.  Montague,    S.    D.    471,    127   N.  W. 

18.  C.  L.  '15,   (11393);  Howell,  639,   30   L.    R.   A.     (N.     S.)     745; 
2nd.      Ed.,     §11454.       People      v.  Wilson    v.   Wilson,   95   Minn.    464, 
Schoonmaker,  119  Mich.  242.  104  N.  W.   300;    Avakian  v.  Ava- 

19.  Lyon  v.  Lyon  230  111.,  366,  kian,  69  N.  J.  Eq.  89,  60  Atl.  521; 
82  N.  E.  850,  13  L.  R.  A.   (N.  S.)  Jones    v.    Brinsmaid,     183    N.    Y. 
996;      Johnson     v.     Johnson,     57  258,  76  N.  E.  22,  3  L.  R.  A.    (N. 
Wash.  89,  106  Pac.  500,  26  L.  R.  S.)  192;  Barney  v.  Cuness,  68  Vt. 
A.    £N.   S.)    179;    People   v.    Case,  51;  Elliott  vs.  Elliott,  77  Wis.  63. 


156 


Fi;  xxi. 

i:    LAWS  OF    DIFFFKFAT   rorXTKIKS. 

§210.  General  Observations. 

$211.  Divorce  Laws  of  British  Empire. 

KM:1.  Divorce  Laws  of  Canada. 

§213.  Divorce  Laws  of  the  United  States. 

8214.  Jurisdiction  Governed  by  Domicile. 

§215.  Place  of  Marriage  not  Controlling. 

Si'Hi.  What  Constitutes  Domicile. 

§217.  Domicile  by  Operation  of  Law. 

§218.  Domicile  for  Purpose  of  Divorce. 

§219.  Change  of  Domicile. 

8220.  Proof  of  Domicile. 

§221.  Temporary  Absence  as  Affecting  Domicile. 

§210.     General  Observations. 

Each  sovereign  state  of  the  civilized  world  luis  (lie  power 
to  enact  laws  for  the  regulation  of  the  marriage  or  divorce  of 
its  domiciled  citizens.  The  British  Parliament  has  enacted 
marriage  and  divorce  laws  that  differ  materially  for  the  dif- 
ferent divisions  of  the  Empire,  and  sole  power  over  marriage 
in  the  Dominion  of  Canada  was  delegated  to  the  Dominion 
Parliament  by  the  law  known  as  the  British  North  America 
Act. 

§211.    Divorce  Laws  of  British  Empire. 

Prior  to  the  year  1857,  the  ecclesiastical  courts  had  exclusive 
jurisdiction  to  grant  divorces  in  England  and  Wales.  The 
Act  of  August  S,  isr>7  established  a  court  for  divorce  and 
matrimonial  causes,  which  had  exclusive  jurisdiction  to  grant 
divorces  in  England  and  Wales  up  to  1873. 

In  1873,  a  new  tribunal  having  jurisdiction  over  all  divorce 
causes  was  established  in  England,  known  as  the  "I'robate. 
Divorce  and  Admiralty  Division."  which  now  has  exclusive 
jurisdiction  to  grant  divorces  in  England.  .  By  the  Act  of 
January  1,  1871  a  "Court  for  Divorce  and  Matrimonial 
Causes"  was  established  for  Ireland,  with  Catholics  baric  1 
from  its  benefits. 

This  statute  has  since  been  declared  unconstitutional,  and 

157 


§212  DIVORCE   LAWS    OF   DIFFERENT   COUNTRIES 

an  Irish  marriage  can  be  dissolved  only  by  act  of  the  British 
Parliament.  In  Scotland,  adultery  has  been  a  ground  for 
divorce  since  1560,  and  desertion  since  1573. 

§212.    Divorce  Laws  of  Canada. 

At  the  time  of  the  Confederation  of  the  Provinces  of  Cana- 
da, by  the  law  known  as  the  "British  North  America  Act," 
passed  by  the  British  Parliament  in  1867,  divorce  courts  were 
in  existence  in  the  Provinces  of  British  Columbia,  New  Bruns- 
wick, Nova  Scotia  and  Prince  Edward  Island.  Under  the 
Confederation  Act  the  power  over  divorce  was  vested  in  the 
Dominion  Parliament,  which  never  has  passed  any  legisla- 
tion on  the  subject  unless  it  has  been  done  recently.  Grave 
doubts  have  been  expressed  asi  to  the  power  of  the  courts  of 
British  Columbia  to  hear  divorce  causes,  and  it  is  said  that 
some  of  the  judges  decline  to  do  so. 

In  Prince  Edward  Island  the  Lieutenant  Governor  and 
Council  constitute  the  divorce  court,  and  but  few  divorces 
have  ever  been  granted  in  the  colony.  In  New  Brunswick  and 
Nova  Scotia  the  divorce  courts  that  existed  prior  to  the  con- 
federation are  still  in  existence,  but  seldom  appealed  to.  In 
the  balance  of  the  Dominion  of  Canada  an  absolute  divorce 
can  be  obtained  only  from  the  Dominion  Senate  on  the  ground 
of  adultery  of  either  spolise,  or  the  impotency  of  the  husband, 
or  where  the  marriage  is  voidable  for  non-consummation. 
The  courts  of  the  Dominion  have  the  power  to  grant  alimony 
or  support  to  the  wife  on  proper  application. 

§213.    Divorce  Laws  of  the  United  States. 

Under  the  Federal  constitution  the  establishment  of  divorce 
laws  and  courts  was  left  under  the  absolute  control  of  each 
state,  and  every  state  in  the  union,  except  South  Carolina, 
has  established  courts,  procedure  and  grounds  for  divorce, 
which  are  different  in  each  state.  South  Carolina  has  a  con- 
stitutional provision  prohibiting  the  legislature  from  passing 
divorce  laws.  The  Congress  'of  the  United  States  has  abso- 
lute power  over  divorce  laws  in  the  District  of  Columbia,  the 
Phillipines,  Guam,  Alaska  and  the  Canal  Zone,  which  have 
no  legislative  bodies,  and  has  enacted  divorce  laws  for  Alaska 
and  the  District  of  Columbia.  The  Congress  lias  also  super- 
visory power  to  say  what  divorce  laws  the  territorial  legis- 
latures of  Porto  Rico  and  Hawaii  shall  enact. 

158 


1'LACK   OF    MARRIAGE   NOT   CONTROLLING  §215 

§214.    Jurisdiction  Governed  by  Domicile. 

It  is  well  established  law  that  the  courts  of  any  state,  na- 
tion or  division  thereof,  however  great  or  small,  cannot  di- 
vorce parties  unless  one  of  the  parties  to  the  marriage  is 
domiciled  therein.  This  is  the  reason  why  the  divorce  judg- 
ment of  any  slate  or  nation,  to  one  temporarily  within  its 
borders  is  worthless  if  granted.  This  would  be  attempting  to 
dissolve  the  stains  of  parties,  neither  of  whom  are  citizens. 
and  usurping  a  right  which,  by  all  statutory  law  and  inter- 
national rules  and  comity,  belongs  to  the  place  of  domicile. 

§215.    Place  of  Marriage  not  Controlling. 

The  fact  of  marriage  within  a  certain  state  would  not. 
therefore,  confer  jurisdiction  to  divorce,  for  a  lawful  mar- 
riage may  be  solemnized  in  a  state  or  nation  where  neither 
of  the  parties  has  a  domicile.  The  commission  of  the  act 
constituting  ground  for  divorce  would  not  confer  jurisdiction, 
for  the  act  might  be  committed  by  a  temporary  sojourner. 

Domicile,  therefore,  is  the  only  test  of  jurisdiction  to  di- 
vorce. It  is  the  only  jurisdiction  which  will  be  recognized 
internationally  throughout  the  civilized  world.  Attempts  to 
assume  jurisdiction  through  any  other  medium  than  that  of 
the  domicile  of  one  of  the  parties,  has  always  resulted  in  a 
worthless  divorce,  void  in  the  jurisdiction  where  it  is  granted, 
and  void  extra-territorially. 

Statutory  attempts  to  confer  jurisdiction  by  reason  of 
"residence,"  marriage  within  the  jurisdiction  where  the  snii 
is  instituted,  or  the  commission  of  the  offense  within  the  place 
of  suit,  have  always  resulted  disastrously;  and  the  courts  of 
every  state  and  nation,  universally,  absolutely  refuse  to  recog- 
nize the  right  of  any  court  to  divorce  parties,  unless  at  least 
one  of  them  was.  in  good  faith,  domiciled  within  the  terri 
torial  jurisdiction  of  the  court  to  which  the  application  was 
made,  and  by  which  the  judgment  or  decree  was  rendered. 

Convictions  of  the  crimes  of  adultery,  bigamy,  polygamy 
and  unlawful  cohabitation  have  frequently  been  had.  of  tin- 
possessors  of,  such  void  decrees  of  divorce,  and  many  inno 
cent  supposed  wives  and  children  have  been  disinherited  who 
were  dependent  upon  such  void  decree  for  existence.1 

1.     State   v.   Westmoreland,    76  H73.  24  Sup.  Cf.  R.  221;  McCreedy 

S.   C.   145,   56   S.   E.   673,  8   L.  R.  v.   Davis.    44    S.   C.    195,  22   S.   E. 

A.    (N.   S.)    842;    German   Soc.   v.  178,  28  L.  R.  A.  655;  Harding  v. 

Domltzer,  192  N.  S.  125,  48  L.  Ed.  Harding.  198  U.  S.  331,  49  L.  Ed. 

159 


DIVORCE  LAWS  OF  DIFFERENT  COUNTRIES 


§216.    What  Constitutes  Domicile. 

The  domicile  of  a  person  is  the  place  he  voluntarily  fixes  as 
his  residence  and  abode,  not  for  a  mere  special  or  temporary 
purpose,  but  with  a  present  intention  of  making  it  his  per- 
manent hoine.2 

Other  definitions  are:  a  residence  at  a  particular  place  ac- 
companied by  an  intention,  either  positive  or  presumptive,  to 
remain  there  permanently,  or  for  an  undefined  length  of  time  ;3 
the  place  where  a  person  has  his  true,  fixed  permanent  home 
and  principal  establishment,  and  to  which,  whenever  he  is 
absent,  he  has  the  intention  of  returning.4 

Domicile  and  residence  are  not  convertible  terms.  The 
former  is  of  more  extensive  signification,  amPin  eludes  beyond 
mere  physical  presence  at  the  particular  locality,  positive  or 
presumptive  proof  of  an  intention  to  constitute  it  a  permanent 
abiding  place.5 


1072;  Haddock  v.  Haddock,  201 
U.  S.  562,  50  L.  Ed.  885,  26  Sup. 
Ct.  R.,  525;  Reeves  v.  Reeves,  24 
S.  D.  435,  123  N.  W.  869,  25  L. 
R.  A.  (N.  S.)  574;  Thelan  v. 
Theism,  75  Minn.  433,  78  N.  W. 
108;  Dunham  v.  Dunham,  162  111. 
589,  44  N.  E.  841,  35,  L.  R.  A. 

'  70 ;  Adams  v.  Adams,  154  Mass. 
290,  28  N.  E.  260,  13  L.  R.  A. 
275;  People  v.  Dowell,  25  Mich. 
247,  12  Am.  R.  260;  Lawrence  v. 
Nelson,  113  Iowa,  277;  85  N.  W. 
84,  57  L.  R.  A.  583;  Rumping  v. 
Rumping,  36  Mont.  39,  91  Pac. 
1057,  12  L.  R.  A.  (N.  S.)  1197; 
Hard  v.  Hard,  51  Neb.  412,  70  N. 
W.  1122;  People  v.  Case,  241  111. 
279,  89  N.  E.  638,  25  L.  R.  A.  (N. 
S.)  578;  Hoffman  v.  Hoffman,  155 
Mich.  328,  118  N.  W.  990;  Frank- 
lin v.  Franklin,  190  Mass.  349,  77 
N.  E.  48,  4  L.  R.  A.  (N.  S.)  145; 
Winans  v.  Winans,  205  Mass. 
388,  91  N.  E.  394,  28  L.  R.  A.  (N. 

•S.)  992;  Watkinson  v.  Watkin- 
son,  68  N.  J.  Eq.  632,  60  Atl.  931, 
69  L.  R.  A.  397,  6  Am.  Cases, 
326;  Bradfield  v.  Bradfleld,  164 
Mich.  115,  117  N.  W.  588;  Mohler 
v.  Shank,  93  Iowa,  274,  61  N.  W. 
981,  57  Am.  St.  274,  34  L.  R.  A. 


161;  In  re  Christensetf,  17  Utah 
412,  53  Pac.  1003,  70  Am.  St.  974, 
41  L.  R.  A.  504;  Sammons  v. 
Pike,-  108  Minn.  291,  122  N.  W. 
168,  23  L.  R.  A.  (N.  S.)  1254; 
State  v.  Morse,  31  Utah  213,  87 
Pac.  705,  7  L.  R.  A.  (N.  S.)  1127; 
Wood  v.  Wood,  59  Ark. 

2.  14  Cyc.,  833. 

3.  Merrill   v.   Morsett,   76   Ala. 
433-437;    Littlefield   v.   Brooks,   50 
Me.  475-477;   Stout  v.  Leonard,  37 
N.  J.  L.  492-495;    State  v.  Borden 
town,   32   N.  J.  L.   192;    Cadwala- 
der  v.   Howell,    18   N.   J.   L.    138; 
Mitchell  v.  U.  S.,  21  Wall.  (U.  S.) 
350,  22   L.   Ed.  584;   Chambers  v. 
Prince,  75  Fed.  176. 

4.  Story   Confl.   of   Laws,    Sec. 
41;    Smith   v.  Croon,    7    Fed.    81, 
152;   Hayes  v.  Hayes.  74  111.  312, 
314;     Hairston     v.     Hairston,     27 
Miss.  704.  718,   61  Am.  Dec.   530; 
Hart    v.    Lindsey,    17    N.    H.    235, 
243. 

5.  Krone    v.    Cooper,    43    Ark. 
547;  Salem  v.  Lynn,  29  Conn.  74; 
Tazewell  v.  Davenport,  40  111.  179 ; 
Savage    v.    Scott,     45     Iowa    130; 
Cohen    v.    Daniels,    25     Iowa    88; 
Love    v.    Cherry,     24     Iowa     204; 
Keith   v.    Stetter,    25    Kan.     100; 


160 


noMN'II.K    I'.V    OI'KIIATION    or    LAW 


§217 


But,  in  statutes  prescribing  the  jurisdictional  prerequisites 
to  the  maintenance  of  actions  for  divorce  or  separation,  the 
term  "residence"  has  been  held  equivalent  to  "domicile."6 

No  person  can  be  without  a  domicile  in  contemplation  of 
l;i\\.  and  he  can  have  but  one  domicile  at  the  same  time  for 
one  and  the  same  purpose.7 

§217.    Domicile  by  Operation  of  Law. 

Domicile  by  operation  of  law  is  consequential,  as*  that  of 
a  wife  arising  from  marriage.8  The  law  fixes  the  domicile  of 
;i  wife  by  that  of  the  husband,  and  during  cohabitation  she 
cannot  acquire  a  domicile  elsewhere.9  The  rule  just  state/1, 
however,  does  not  apply  where  the  wife  has  been  abandoned. 


/ 

s 


Briggs  v.  Rochester,  16  Gray 
(Mass.)  337;  Morgan  v.  Nunes,  54 
Miss.  308;  Alston  v.  Newcomer, 

42  Miss.   186;    Johnson   v.   Smith, 

43  Mo.  499;   Walker  v.  Walker,  1 
Mo.   App.   404;    Stout  v.  Leonard, 
37  N.  J.  L.  492;   Haggart  v.  Mor- 
gan, 5  N.  Y.  422,  55  Am.  Dec.  350; 
Heennon   vs.   Grizzard,   89   N.   C. 
115;   Foster  v.  Hall,  4  Humphrey 
(Tenn.)    346;    Brown  v.   Boulden, 
18   Tex.  431;    Long    v.    Ryan,    30 
Gratt.    (Va.)    718;    Dean    v.   Can- 
non, 37  W.  Va.  123,  16  S.  E.  444; 
Hall  v.  Hall,  25  Wis.  600;  Collins 
v.  Ashland.  112  Fed.   175;   Cham- 
bers    v.     Prince,     75     Fed.     176; 
Brisenden  v.  Chamberlain,  53  Fed. 
307. 

6.  Hinds  v.  Hinds,  1  Iowa  36; 
Shaw  v.  Shaw,  98  Mass.  158;  Her- 
vey  v.  Hervey,   56  N".  J.  Eq.  166, 
3  Atl.  767;   Firth  v.  Firth,  50  N. 
J.  Eq.  137,  24  Atl.   916;   Codding- 
ton    v.   Coddington,   20   N.   J.   Eq. 
263;  Winship  v.  Winship,  16  N.  J. 
Eq.    107;    Demeli    v.    Demeli,   120 
N.    Y.    485,    24    N.    E.    R.    996,    17 
Am.  St.  R.  652;   Hall  v.  Hall,   25 
Wis.  600. 

7.  Algood  v.  Williams,  92  Ala. 
551,   8   So.   722;    New   Haven   1st. 
Ntl.   Bank   v.   Balsom,    35    Conn. 
351;    Love   v.    Cherry,    24    Iowa, 
204;  Graham  v.  Trimmer,  6  Kan. 
230;    Gilman    v.    Oilman,    52    Me. 


165;  Pickering  v.  Cambridge,  144 
Mass.  244,  10  N.  E.  827;  Beecher 
v.  Detroit,  114  Mich.  228,  72  N. 
W.  206;  Warren  v.  Board  of 
Registration,  72  Mich.  390,  40  N. 
W.  553,  2  L.  R.  A.  205;  In  re 
High,  2  Doug.  (Mich.)  515. 

8.  Story,  Confl.  of  Laws,  Sec. 
48;  Smith  v.  Croon,  7  Fla.  81. 

•9.  Talmadge  v.  Talmadge,  66 
Ala.  194;  Johnson  v.  Turner,  29 
Ark.  280;  Kashon  v.  Kashon,  3 
Col.  312;  Wingfield  v.  Rhea,  77 
Ga.  84;  Cooper  v.  Beers,  143  111. 
25,  33  N.  E.  61;  Jenness  v.  Jen- 
ness,  24  Ind.  355;  Maguire  v.  Ma- 
im in-.  7  Dana  (Ky.)  181;  Hard- 
ing v.  Alden,  9  Me.  140,  23  Am. 
Dec.  549;  Burlin  v.  Shannon,  115 
Mass.  438;  Spaulding  v.  Steel,  129 
Mich.  237,  88  N.  W.  627;  Hairs- 
ton  v.  Hairston,  27  Miss.  704,  61 
Am.  Dec.  530;  Smith  v.  Smith, 
19  Neb.  706,  28  N.  W.  495;  O'Dea 
v.  O'Dea,  101  N.  Y.  23,  4  N.  E. 
110;  Hunt  v.  Hunt,  72  N.  Y.  217, 
28  Am.  R.  129;  Hicks  v.  Skinner, 
71  N.  C.  539,  17  Am.  R.  16; 
Dougherty  v.  Snyder,  15  Serg.  & 
R.  (Pa.)  84,  16  Am.  Dec.  520; 
White  v.  White,  18  R.  I.  292,  27 
Atl.  506;  Hascall  v.  Hafford,  107 
Tenn.  355,  65  S.  W.  423,  89  Am. 
St.  R.  952;  Clements  v.  Lacey,  51 
Tex.  150;  Atherton  v.  Atherton, 
181  U.  S.  155,  45  L.  Ed.  794. 

161 


§218  DIVORCE  LAWS  OP  DIFFERENT  COUNTRIES 

or  forced  by  brutal  treatment  to  leave  the  husband.  In  such 
cases  the  wife  is  permitted  to  establish  a  domicile  for  herself.10 
But  a  wife  who  has  left  her  husband  without  just  cause  can 
acquire  no  separate  domicile.11 

§218.    Domicile  for  Purpose  of  Divorce. 

Where  the  husband  has  been  guilty  of  conduct  whioh  en- 
titles the  wife  to  a  divorce,  it  is  held  in  some  states  that  she 
may  acquire  a  separate  domicile  of  her  own  for  the  purpose 
of  conferring  jurisdiction  on  the  proper  tribunal  in  a  pro- 
ceeding for  divorce  or  separation.12 

After  the  husband's  death,  the  wife  has  of  course,  a  right  to 
elect  her  own  domicile.13 

§219.     Change  of  Domicile. 

An  existing  domicile  is  not  changed  until  a  person  abandons 
it  with  no  present  intention  of  returning  thereto,  and  a  new 
domicile  is  not  acquired  until  the  new  residence  is  taken  with 
the  present  intention  of  remaining  there  indefinitely.  This 
explains  why  those  who,  by  acts  and  declarations,  prove  that 
they  are  in  a  place  to  remain  a  fixed  time,  or  until  the  out- 
come of  a  certain  event,  such  as  the  obtaining  of  a  divorce, 
are  held  by  all  courts  to  have  no  domicile  in  such  place.  The 
courts  thereof  have  no  jurisdiction  to  divorce  them,  and  a  de- 
cree of  divorce,  if  obtained  under  such  circumstances,  is  ab- 
solutely void. 

Three  things  are  necessary  in  the  acquirement  of  a  new 
domicile;  viz:  (1)  the  act  of  removing  from  the  existing 
domicile  with  no  present  intention  of  returning  thereto;  (2) 
actual  residence  in  the  new  locality,  coupled  with  the  present 
intention  of  residing  there  indefinitely;  and,  (3)  the  legal 
ability  to  acquire  a  new  domicile. 

10     Shaw    v.    Shaw,     98     Mass.  ing  v.  Harding,  9  Me.  140,  23  Am. 

158;   Arrington  v.  Arrington,   lt)2  Dec.    549;    Watkins    v.    Watkins, 

N.  C.  491,  9  S.  E.  200.  135    Mass.    83;    Hopkins    v.    Hop- 

11.  Maguire  v.  Maguire,  7  Dan#  kins,  35  N.  H.  474;  Hunt  v.  Hunt, 
(Ky.)    181;    Burlen    v.    Shannon,  72  N.  Y.  217,  28  Am.  R.  129;  Irby 
115  Mass.  438.  v.   Wilson,    21   N.    C.    568;    Colvin 

12.  Hanherry  v.  Hanberry,   29  v.  Reed,  55  Pa.  St.  375:  White  v. 
Ala.  719;  Moffatt  v.  Moffatt,  5  Cal.  White,  18  R.  I.  292,  27  Atl.   506; 
280;   Chapman    v.    Chapman,    129  Cravens  v.  Cravens,  27  Wis.  418; 
111.  386,  21  N.  E.  806;  Jenness  v.  Che'ever  v.  Wilson,  9  Wall.  (U.  S.) 
Jenness,  24  Ind.  355,  87  Am.  Dec.  108,  L.  Ed.  604. 

335;  Kline  v.  Kline,  57  Iowa,  386,  13.     Cheely   v.    Clayton,   110   U. 

10  N.  W.  825;  Johnson  v.  John-  S.  701,  28  L.  Ed.  328,  4  S.  C.  328. 
son,  12  Bush.  (Ky.)  485;  Hard- 

162 


1'ROOF  OF   DOMICII.K  ^--<> 

Both  residence  and  intention  must  be  proved.  Proof  >of  in- 
imtion  to  remain  indelinitely  would  establish  only  residence, 
which  does  not  confer  jurisdiction  to  divorce.  A  person  can 
have  but  one  domicile  at  the  same  time,  although  they  may 
1m ve  many  different  residences.  Minors,  idiots  and  lunatics 
cannot  acquire  a  new  domicile.  The  domicile  of  the  minor  is 
where  thp  parent  or  guardian  is  domiciled;  that  of  a  lunatic 
remains  where  it  was  when  he  was  adjudged  non  compos 
mentis.  An  idiot's  domicile  is  where  his  legal  guardian  is 
domiciled. 

It  is  settled  law  throughout  the  United  States  that  a  wife 
may  acquire  a  new  domicile,  separate  from  that  of  her  hus- 
band, whenever  she  is  justified  in  leaving  him.  The  measure 
of  justification  is,  acts  committed  by  the  husband  that  en- 
titles the  wife  to  a  dissolution  of  the  marriage  relation. 

The  legal  doctrine  that  both  residence  and  intention  must 
be  | (roved  to  effect  a  change  of  domicile,  is  world  wide.  It 
is  the  ruling  of  all  courts,  and  has  been  carried  to  the  extent 
of  holding  that'  the  place  where  one  has  lived  continuously 
for  many  years  does  not  become  his  domicile  unless  it  can 
be  shown,  by  competent  proof,  that  such  person  formed  the 
intention  of  abandoning  the  existing  domicile  and  the  inten- 
tion of  remaining  in  the  last  place  of  residence  indefinitely.14 

| 

§220.    Proof  of  Domicile. 

The  complainant  or  party   to  the  marriage  instituting  the 

14.     Humping    v.    Rumping,    36  State   v.   Morse,   31   Utah   213,   87 

Mont.   37,  91  Pac.   1057,  12  L.   R.  .Pac.  705,  7  L.  R.  A.  (N.  S.)   1127; 

A.  (N.  S.)  1197;  Pearce  v.  Pearce,  Post  v.  Post,  105  N.  Y.  Supp.  910; 

132  Ala.   221,   31   So.    85,   90  Am.  Percival  >.   Percival,    186    N.    Y. 

St.  R.   901;   Becklenberg  v.  Beck-  587,  79  N.  E.  1114;   Felt  v.  Felt, 

lenberg,  232  111.  120,  83  N.  E.  423;  59  N.  J.  Eq.  606,  49  Atl.  1071,  47 

Lament   v.   Lamont,   134  Ga.   523.  L.  R.  A.  546;  Roe  v.  Roe,  52  Kan. 

68   S.   E.  96;    Bradfield    v.    Brad-  724,  35  Pac.  808;  Haddock  v.  Had* 

field,   154  Mich.   115,    117    N.    W.  dock,    201   U.    S.    562,    50    L.    Ed. 

588,  129  Am.  St.  R.  468;   Blandin  867,  26  Sup.  Ct.  525,  5  Am.  Gas. 

v.     Brooks,     (Vt.)     76    Atl.    184;  1;   Bidwell  v.   Bidwell,  139  N.  C. 

Becker  v.   Becker,   160    Ind.    407,  402,  52  S.  E.  55,  2  L.  R.  A.    (N. 

66  N.  E.  1010 ;  State  vs.  Westmore-  S.)    324;    McCreery   v.    Davis,    44 

land,  76   S.   C.   145,  56   S.  E.  703,  S.   C.  195,  22  S.  E.   178,  28  L.  R. 

8  L.  R.  A.    (N.   S.)    842;    Ingram  A.   655;    D.uxstad   v.    Duxstad,   17 

v.    Ingram,   143   Ala.    129,   42   So.  Wyo.   411.  100  Pac.   112,  129  Am. 

24,  111  Am.  St.  R.  31;   Hinkle  v.  St.   R.   1138;    Winans   v.   Winans, 

Lovelace,  204  Mo.  208,  102  S.   W.  205   Mass.   388,   91   N.   E.   394,    28 

1015;    Joyner   v.   Joyner,   131   Ga.  L.  R.  A.   (N.  S.)   992;  Watkinson 

217,  62  S.  E.  182,  127  Am.  St.  R.  v.   Watkinson,   68   N.   J.   Eq.   632, 

220,   18   L.   R.    A.     (N.    S.)     647;-  60  Atl.  931,  6   Am.  Cases  326,   69 

163 


§220 

action  for  divorce,  in  order  to  obtain  a  decree  dissolving  the 
marriage  which  shall  be  entitled  to  faith  and  credit  every- 
where, under  the  "faith  and  credit"  clause  of  the  federal  con- 
stitution and  the  rules  of  interstate  and  international  law, 
must  not  only  have  an  actual  domicile  in  the  state  where  the 
suit  is  instituted,  for  the  length  of  time  required  by  its  laws, 
but  must  furnish  proof  of  such  domicile  in  conformity  with 
the  laws  of  the  state  and  the  requirements  of  interstate  and 
international  law.  No  presumptions  are  to  be  indulged  in 
respecting  domicile,  and  when  relied  on  as  the  jurisdictional 
basis  of  a  suit  for  divorce,  the  burden  of  establishing  domicile 
rests  upon  the  one  alleging  it. 

The  appearance  of  a  non-resident  defendant  cannot  invest 
a  court  with  jurisdiction  of  a  suit  for  divorce  instituted  by  a 
person  who  has  no  bona  fide  domicile  within  the  state.15 

The  record  of  a  judgment  rendered  in  another  state  may  be 
contradicted  as  to  the  facts  necessary  to  give  the  court  juris- 
diction ;  and  if  it  be  shown  that  such  facts  did  not  exist,  the 
record  will  be  a  nullity,  notwithstanding  it  may  recite  that 
they  did  exist.16 

The  laws  of  the  different  states  governing  proof  of  domi- 
cile are  so  dissimilar  that  each  individual  case  must  depend 
upon  the  laws  of  the  state  in  which  the  suit  is  tried,  as  to 
the  manner  and  kind  of  evidence  necessary  to  establish  domi- 
cile. In  general,  it  may  be  said  that  not  only  must  residence 
in  the  state  be  proved,  but  it  must  be  shown  that  the  inten- 
tion of  remaining  has  existed  at  all  times  during  the  resi- 
dence. The  law  of  domicile  is  complex  and  difficult.  It  de- 
pends largely  upon  intention,  and  upon  the  acts  and  declara- 

L.  R.  A.  397;   Sworiski  v.  Swori-  former     residence     involving    the 

ski,  75    N.    H.    1,    70    Atl.    119;  same  matters  alleged  as  a  cause 

Stone    v.    Stone,     134     Mo.     App.  for  divorce  and  in  which  she  has 

242,    113    S.    W.    1157;     Duke    v.  appeared,  is  guilty  of  such  fraud 

Duke,    27   N.   J.   Eq.   434,   65  Atl.  as   to   invalidate   a  decree   of   di- 

117;   White  v.  Tenant,  31  W.  Va.  vorce   obtained  by  her,    although 

790,   8   S.  E.   596;    Coburn  v.   Co-  the    pending     of    the   prior    suit 

burn,  70  Mich.  647,  38  N.  W.  607;  could   not   have   been   pleaded   in 

Dunham  v.  Dunham,  168  111.  584,  .abatement  or   in  bar  to    her    di- 

44  N.  E.   841,  35  L.  R.  A.  70.     A  vorce  suit.     Dunham  v.  Dunham, 

wife   who,   upon    separation   from  168  111.  584,  35  L.  R.  A.  70. 

her     husband,    goes    to    another  15.     Andrews   v.   Andrews,    188 

state   for   the    purpose   of   obtain-  U.  S.  14,  47  L.  Ed.  366,  176  Mass, 

ing   a   divorce     and,    brings    suit  92,  57  N.  E.  333. 

without  disclosing  the  fact  that  a  16.     Thompson  v.  Whitman,  85 

suit  is  pending  in  the  state  of  her  U.  S.  457,  21  L.  Ed.  897. 

164 


TKMl'OKARY    ABSK.NCK    AS    A1TKCT1XU    DOMICILE  §221 

lions  in  each  individual  case.  Acts  and  declarations,  to  lie 
of  value  as  proof  of  intention,  must  be  consistent  with  the  in 
tention  sought  to  be  proved,  and  inconsistent  with  any  other 
intention.  If  the  applicant  for  a  decree  of  divorce  goes  into 
another  state  for  the  purpose  of  procuring  a  divorce,  and  for 
no  other  purpose,  he  cannot  acquire  such  a  domicile  therein 
as  will  give  the  courts  of  the  latter  state  jurisdiction  to  grant 
the  derive.  In  such  a  case  any  decree  granted  would  be  abso- 
lutely void,  even  although  the  trial  court  should  expressly 
lind  that  tin-  applicant  was  in  good  faith  domiciled  in  the 
state  where  the  decree  was  granted.  The  record  of  the  decree 
can  be  contradicted,  even  in  a  collateral  proceeding  in  another 
st;itc.  if  it  can  be  shown  thai  such  a  domicile  as  would  give  the 
courts  of  the  state  granting  the  decree  jurisdiction  does  not 
exist.17 

§221.     Temporary  Absence  as  Affecting  Domicile. 

As  a  new  domicile  is  acquired  by  giving  up  the  existing 
one.  with  no  present  intention  of  returning  thereto,  and  tak- 
ing the  new  residence  with  the  present  intention  of  residing 
there  indethiitely.  it  being  necessary,  in  order  to  effect  and 
prove  a  change  of  domicile,  to  prove  both  residence  and  inten- 
tion. it  follows  as  a  necessary  conclusion  that  a  domicile  once 
established  by  the  co-operation  of  the  fact  of  residence  and 
intention  of  remaining  indefinitely  is  not  lost  or  impaired  by 
temporary  absences,  for  health,  pleasure,  or  business.  Oilier- 
wise  those  whose  business  or  health  cause  them  to  travel  in 
different  slates  and  countries  could  never  acquire  a  new  domi- 
cile. The  laws  of  all  countries  allow  even-  person  to  have  one 
domicile,  and  no  more  than  one  at  the  same  time.  That  domi- 
cile is  wherever  the  cooperation  of  the  fact  of  residence  and 
intention  of  remaining  indefinitely  fixes  it.  and  all  courts 
hold  that  such  domicile  is  not  forfeited  nor  in  any  manner 
impaired  by  reason  of  temporary  absence  therefrom,  so  long 
as  the  intention  exists  of  returning  thereto,  which  is  shown  by 
keeping  the  domicile  during  the  temporary  absences.  ;md  by 
:i  return  thereto  when  the  cause  for  temporary  absence  no 
longer 


17.  AndreVs    v.    Andrews,    188  E.  394,  28  L.  R.  A.   (X.  S.)    992; 
U.  S.   14.  47  L.  Ed.  366;   Thomp-  Hoffman    v.    Hoffman,    155    Mich. 
son  vs.  Whitman,  85  U.  S.  457,  21  328,    118   N.   W.    990;    Lament   v. 
L.  E.  Ed.  897.  Lament  (Ga.),  68  S.  E.  96;    Duke 

18.  Duekstad    v.    Duekstad,    17  v.  Duke,  72  N.  J.  Eq.  434.  65  Atl. 
Wy.    411,    100   Pac.    112;    Winans  1117;    Bradfleld   v.   Bradfleld.   154 
v.    Winans.    L'or,   Mass.    388,   91  N.  Mich.   115,  117  N.  W.  588. 

165 


CHAPTER  XXII. 

CAUSES  AUTHORIZING  DIVORCE  AND  THE  PRO- 
CEDURE IN  DIFFERENT  STATES. 


§222. 

Courts  without  Power  to  Grant 

§248. 

Mississippi. 

Divorce  except  by  Statutory 

§249. 

Missouri. 

Authority. 

§250. 

Montana. 

§223. 

Alabama. 

§251. 

Nebraska. 

§224. 

Alaska. 

§252. 

Nevada. 

§225. 

Arizona. 

§253. 

New  Hampshire. 

§226. 

Arkansas. 

§254. 

New  Jersey. 

§227. 

California. 

§255. 

New  Mexico. 

§228. 

Colorado. 

§256. 

New  York. 

§229. 

Connecticut. 

§257. 

North  Carolina. 

§230. 

Delaware. 

§258. 

North  Dakota. 

§231. 

District  of  Columbia. 

§259. 

Ohio. 

§232. 

Florida. 

§260. 

Oklahoma. 

§233. 

Georgia. 

§261. 

Oregon. 

§234. 

Guam. 

§262. 

Pennsylvania. 

§235. 

Hawaii  Territory. 

§263. 

Porto  Rico. 

§236. 

Idaho. 

§264. 

Rhode  Island. 

§237. 

Illinois. 

§265. 

South  Carolina. 

§238. 

Indiana. 

§266. 

South  Dakota. 

§239. 

Iowa. 

§267. 

Tennessee. 

$240. 

Kansas. 

§268. 

Texas. 

§241. 

Kentucky. 

§269. 

Utah. 

§242. 

Louisiana. 

§270. 

Vermont. 

§243. 

Maine. 

§271. 

Virginia. 

§244. 

Maryland. 

§272. 

Washington. 

1245. 

Massachusetts. 

§273. 

West  Virginia. 

§246. 

Michigan. 

§274. 

Wisconsin. 

§247. 

Minnesota. 

§275. 

Wyoming. 

§222.     Courts  without  Power  to  Grant  Divorce  except  by  Statu- 
tory Authority. 

The  courts  of  any  state  or  territory  of  the  United  States 
are  without  power  to  grant  absolute  divorces  except  as  au- 
thorized by  statute,  or  the  written  law  of  the  state  in  which 
the  suit  is  instituted.  The  constitutions  of  nearly  all,  if  not 
all,  of  the  states  of  the  Union  prohibit  legislative  divorces  for 
any  cause,  the  sole  power  being  vested  in  the  courts  of  the 
respective  states. 

166 


ARIZONA 

The  following  are  the  causes  or  grounds  for  absolute  divorce 
in  the  various  states,  and  a  statement  of  the  time  of  residence 
required,  and  the  procedure  in  each  state. 

§223.    Alabama. 

Causes:  (1)  Incurable  iuipotency  at  date  of  marriage;  i-l 
adultery;  i .",  \  abandonment  for  two  years  (4)  imprisonment 
in  the  penitentiary  for  two  years  under  sentence  of  not  less 
than  seven  years;  (5)  crime  against  nature  whether  with  man- 
kind or  beast;  (6)  habitual  drunkenness;  (7)  pregnancy  of 
the  wife  at  the  time  of  the  marriage  without  the  knowledge 
or  agency  of  the  husband;  (8)  actual  violence  by  the  husband 
on  the  person  of  the  wife  attended  with  danger  to  life  or 
health. 

Procedure:  The  plaintiff  must  be  domiciled  in  the  state  for 
the  period  of  one  year  before  commencing  the  action.  The 
cause  may  be  tried  about  five  months  after  service  on  the  de- 
fendant, before  the  chancery  court.  The  decree  does  not  per- 
mit either  party  to  marry  again  until  sixty  days  after  it  is 
rendered.  If  the  ground  of  divorce  is  desertion,  the  plaintiff 
must  be  domiciled  in  the  state  for  the  period  of  three  years 
before  instituting  the  suit.1 

§224.     Alaska. 

Causes:  (1)  Impotency  at  the  time  of  the  marriage,  and 
continuing  at  the  time  of  the  commencement  of  the  suit;  (2) 
adultery;  (3)  conviction  of  felony;  (4)  wilful  desertion  for 
two  years;  (5)  habitual  drunkenness  since  marriage,  continu- 
ing for  one  year;  (6)  cruel  and  inhuman  treatment  calcu- 
l.i id]  to  impair  or  endanger  life. 

Procedure:  The  plaintiff  must  be  domiciled  in  the  terri- 
tory two  years  before  commencing  suit.  The  cause  may  be 
tried  three  months  after  service  on  the  defendant  before  the 
United  States  District  Court.  The  decree  does  not  permit 
either  party  to  marry  until  the  erpiration  of  one  year  after 
it  is  rendered.2  . 

§225.    Arizona. 

< ''i uses:     (I)  Adultery;   (2)   impotency  at  the  time  of  the 

1.  Revised  Code    of    Alabama,  r;52;   U.   S.   Stat.  at  Large,  Vols. 
1907;    Davis    v.    Davis,    132    Ala.  31-33;  Carter's  Alaska  Code,  1900; 
219,  31  So.  473;  Wilkinson  v.  Wil-  Leak  v.   Leak,   156   Fed.   474,   84 
kinson,  133  Ala.  382,  32  So.   124;  0.  C.  A.  284;   3  Alaska  163;   Ter- 
Martin  v.  Martin,  55  So.  632.  rill  v.  Terrill,  2  Alaska  475, 

2.  Elliott    v.    Elliott,    3   Alaska 

16T 


§226  CAUSES   AUTHORIZING   DIVORCE 

marriage  and  continuing  to  the  time  of  the  commencement  of 
the  suit;  (3)  conviction  of  felony  under  sentence  one  year  old 
unless  the  conviction  was  on  the  testimony  of  the  other  party 
to  the  marriage;  (4)  wilful  desertion  or  habitual  intem- 
perance for  the  period  of  one  year;  (5)  cruel  treatment,  ex- 
cesses or  outrages  by  one  of  the  parties  toward  the  other;  (6) 
husband's  neglect  for  one  year  to  provide  the  necessaries  of 
life,  he  having  the  ability;  (7)  conviction,  prior  to  the  mar- 
riage, of  an  infamous  crime,  without  the  knowledge  of  the 
other  party;  (8)  pregnancy  of  the  wife  at  the  time  of  the 
marriage,  without  the  knowledge  or  agency  of  the  husband. 

Procedure:  The  plaintiff  must  be  domiciled  in  the  state  for 
the  period  of  one  year  before  commencing  the  action.  The 
cause  may  be  tried  by  the  court  after  the  expiration  of  three 
months  from  the  time  of  service.  The  suit  must  be  instituted 
in  the  county  where  the  plaintiff  has  had  a  domicile  for  the 
period  of  six  months  next  preceding  the  time  of  filing  the 
suit3 

§226.    Arkansas. 

Causes:  (1)  Impotency  at  the  time  of  the  marriage  and  at 
the  time  of  the  action;  (2)  wilful  desertion  for  one  year; 
(3)  former  husband  or  wife  living,  and  undivorced  at  the  time 
of  the  marriage;  (4)  conviction  of  felony  or  other  infamous 
crime;  (5)  habitual  drunkenness  for  the  period  of  one  year; 
(6)  cruel  and  barbarous  treatment  by  one  party  endangering 
the  life  of  the  other,  or  indignities  rendering  the  life  of  the 
other  intolerable;  (7)  adultery,  subsequent  to  the  marriage. 

Procedure:  The  plaintiff  must  be  domiciled  in  the  state 
for  the  period  of  one  year  before  commencing  the  action.  The 
action  may  be  tried  after  the  expiration  of  four  months  from 
the  time  of  service  on  the  defendant.  The  plaintiff  must  have 
been  a  resident  of  the  state  when  the  cause  of  action  accrued, 
or  it  must  be  cause  for  divorce  in  'the  state  where  the  plain- 
tiff had  a  domicile  when  the  cause  accrued.  Action  tried  by 
the  court.4 

3.  Revised  Statutes  of  Arizona,  72  Ark.  281,  183  S.  W.  1136 ;  Pryor 
1900;     DeHerlan    v.    DeHerlan,    6  v.   Pryor,  88  Ark.   302,  114  S.  W. 
Ariz.   270,   56   Pac.    871;   Walker's  700,    129    Am.    St.    R.    102;    Wood 
Est,  5  Ariz.  70,  46  Pac.  67.  v.    Wootf,   59   Ark.    441,   27    S.   W. 

4.  Revised      Statutes     of     Ar-  641,  43  Am.  St.  R.  42,  28  L.  R.  A. 
kansas,  1904;  Womack  v.  Womack,  157. 

168 


CONNECTICUT  ?-'-"•• 

§227.     California. 

('uiixrx:  .  (1)  Adultery:  i  L' i  extreme  cruelly;  il'.i  wilful' 
desertion  r<>r  our  year:  (4)  wilful  neglect  by  lmsl»;m«l  for  one 
year;  (Tii  habitual  intemperance  for  one  year;  MM  convict  ion 
of  felony. 

I'rnmliirr:  The  plaintiff  must  he  domiciled  in  the  state 
one  year,  and  in  the  county  where  the  suit  is  instituted  three 
'imiiilis,  hefore  commencing  the  action.  The  trial  may  he  had 
after  the  expiration  of  three  months  from  the  time  of  service 
on  the  defendant.  The  first  decree  is  interlocutory,  from 
whirh  an  appeal  may  be  taken  within  six  months  after  it  is 
rendered.  Absolute  divorce  is  granted  if  no  cause  to  the  con- 
trary is  shown,  one  year  after  tiling  the  interlocutory  decree. 
The  trial  is  by  the  court.5 

§228.     Colorado. 

rfn/.vr.v;  i  1)  Impoteucy:  ii'i  another  husband  or  wife  liv- 
ing, undivorced;  (3)  adultery  subsequent  to  the  marriage: 
(4)  wilful  desertion  for  one  year;  (5)  extreme  and  repeated 
cruelty:  id.  failure  of  husband  to  support  wife  and  family 
for  one-  year,  he  being  in  good  health;  ^7)  habitual  drunken- 
ness for  one'  year;  (8)  conviction  of  felony. 

Procrrf ur(:  The  plaintiff  must  be  domiciled  for  the  period  of 
one  year  before  commencing  the  action.  Trial  is  had  by  jury 
after  the  expiration  of  three  months  after  service  on  the  de- 
fendant. The  decree  does  not  become  absolute  until  the  ex- 
piration  of  one  year  from  the  date  of  the  verdict  of  the  jury, 
(luring  which  time  neither  party  can  marry  again.6 

§220.     Connecticut. 

Causes:  (1)  Adultery;  (2)  another  husband  or  wife  living 
and  undivorced;  (3)  wilful  desertion  for  the  period  of  three 
years:  ill  seven  years'  absence  unheard  from;  (5)  habitual 
intemperance1-:  Mil  intolerable  cruelty;  (7)  sentence  to  im- 
prisonment in  the  State  Prison-. 

I'r<trriliir<-:     The-  plaintiff  must  be  domiciled  in  state  for  a 

•5.     Revised  Code  of  California.  rado.    1905;    Cairnes    v.    Cairnes, 

1909;    Deyoe  v.    Superior    Court,  29  Colo.  264,  68  Pac.  233,  93  Am. 

140  Cal.   476,  74  Pac.  28,  98  Am.  St.    R.    55;    Rudolph    v.   Rudolph, 

St.  R.  73;  Pereira  v.  Perelra,  156  114  Pac.  977;  Mottschall  v.  Mott- 

Cal.  1,  103  Pac.  488,  134  Am.  St.  schall,  31  Colo.  260,  72  Pac.  1035; 

R.  107,  23  L.  R.  A.  (N.  S.)  880.  Branch   v.    Branch,   30   Colo.    499, 

6.     Revised    Statutes    of    Colo-  71  Pac.  1035. 

169 


8-oU  CAUSES  AUTHORIZING  DIVORCE 

period  of  three  years  before  commencing  the  action.  Trial 
may  be  had  before  the  court  after  the  expiration  of  four- 
months  from  the  time  of  service  on  the  defendant.7 

§230.     Delaware. 

Causes:  (1)  adultery;  (2)  bigamy,  at  the  suit  of  the  inno- 
cent and  injured  party  to  the  first  marriage;  (3)  conviction 
of  crime  followed  by  continuous  imprisonment  for  the  period 
of  two  years;  (4)  extreme  cruelty,  endangering  life  or  render- 
ing cohabitation  unsafe;  (5)  wilful  desertion  for  the  period 
of  two  years;  (6)  habitual  drunkenness  for  two  years. 

Procedure:  The  plaintiff  may  bring  suit  for  divorce  in  the 
-county  where  either  party  has  been  domiciled  in  the  -state 
lor  the  period  of  one  year,  and  where  so  domiciled  when  the 
cause  of  divorce  arose,  or,  if  the  cause  of  divorce  arose  when 
neither  party  was  domiciled  in  the  state,  after  the  plaintiff 
has  been  domiciled  in.  the  state  for  the  period  of  two  years, 
provided  it  was  a  cause  for  divorce  in  the  place  where  the 
plaintiff  was  domiciled  when  it  arose.  The  cause  is  tried,  be- 
fore the  court  after  the  expiration  of  two  months  from  the 
time  of  service  on  the  defendant.  The  first  decree  is  nisi,  and 
an  absolute  decree  may  be  granted  after  the  expiration  of  one 
year  from  the  date  of  the  nisi  decree,  unless  an  appeal  is  pend- 
ing.8 * 

§231.    District  of  Columbia. 

Causes:    Adultery,  only. 

Procedure:  The  plaintiff  must  be  domiciled  in  the  district 
for  three  years  before  commencing  suit,  unless  the  adultery 
occurred  in  the  district.  The  equity  court  of  the  district 
hears  the  cause,  which  may  be  tried  two  months  after  service 
on  the  defendant.  Co-respondents  must  be  made  parties  and 
served,  as  well  as  the  guilty  spouse.  The  TT.  S.  Attorney  must 
appear,  and  defend  and  protect  the  public  rights.0 

7.  General     Statutes     of    Con-      518,  52  Atl.  262;  Donovan  v.  Dono- 
necticut,  1902;   Dennis  v.  Dennis,      van,   77  Atl.    765;     Krussman    v. 
68  Conn.  186,  36  Atl.  34,  34  L.  R.       Krussman,  78  Atl.  642. 

A.  449;   Gould  v.  Gould,  78  Conn.  9.     District  of   Columbia   Code, 

242,  61  Atl.  604,  2  L.  R.  A.  (N.  S.)  1905;    Roate  v.  Roate,  35  App.  D. 

531.  C.    398;    Thompson   y.    Thompson, 

8.  Laws     of     Delaware     1907-  35  App.  D;   C.  14 ;' Williamson  v. 
1909;  Noudain  v.  Noudain,  3  Penn.  Williamson,  34  App.  D.  C.  536. 

170 


«.i:oRGIA 

§232.     Florida. 

Causes:  (1)  Consanguinity :  iJi  impotency;  i.'!i  adultery 
of  one  of  the  parties;  (4)  extreme  cruelty;  (5)  habitual,  vio- 
lent and  ungovernable  temper;  (6)  habitual  intemperance; 
(7)  wilful,  obstinate  ami  continued  desertion  for  the  period 
of  one  year;  (8)  the  obtaining  of  a  divorce  by  the  defendant 
in  another  state;  (9)  a  husband  or  wife  of  one  of  the  panics 
living  at  the  time  of  marriage  and  un divorced. 

Procedure:  The  plaintiff  must  have  had  a  domicile  in  the 
state  for  the  period  of  two  years  before  commencing  the  ac- 
liou.  The  trial  may  be  had  before  the  court  of  chancery  after 
the  expiration  of  three  months  from  the  time  of  service  on 
the  defendant.  The  proceedings  and  trial  are  the 'same  as  in 
oilier  chancery  suits.10 

§233.     Georgia. 

Causes:  (1)  Consanguinity  or  affinity;  (2)  mental  incapa- 
city at  time  of  marriage;  (3)  impotency  at  time  of  marriage; 

(4)  force,  menace,  fraud  or  duress-in  procuring  the  marriage; 

(5)  pregnancy  of  the  wife  at  the  time  of  the  marriage,  un 
knoNvn  to  the  husband  :  16)  adultery  committed  after  the  mar- 
riage;   (7)   wilful  and  continued  desertion  for  the  period  of 
three  years;    iSi    conviction    of   an    offense   involving  moral 
turpitude,  and  sentence  to  the  penitentiary  for  two  years  or 
more;  (9)  cruel  treatment  or  habitual  intemperance. 

Procedure:  The  plaintiff  must  have  had  a  domicile  within 
the  state  for  a  period  of  one  year  before  commencing  the 
action.  The  case  may  be  tried  by  a  jury,  and  the  jury  may 
grant  either  an  absolute  or  a  limited  divorce.  Trial  may  be 
had  from  two  to  four  months  after  service  on  the  defendant. 
Before  a  decree  of  divorce  can  be  made  by  the  court,  two 
scp.-irate  term  juries  must  have  returned  a  verdict  in  favor  of 
absolute  divorce.  The  terms  of  court  are  six  months  apart  in 
each  county.11 

10.  General  Statutes  of  Florida,  mont  v.  Lament,  68  S.  E.  96;  Mo 
1906;     HancocK    v.    Hancock,    65  Connell   v.   McConnell,   70     S.    E. 
Fla.    680,   45    So.    1020,    15    L.   R.  647;  Gale  v.  Davis,  68  S.  E.  1101; 
A.   (N.  S.)    670:   Spencer  v.  Spen-  Watts  v.   Watts,   130   Ga.   683,  61 
cer,  55  So.  71;  Beekman  v.  Beek-  S.   E.   593;    Griffln    v.   Griffin,   130 
man,  53  Fla.  858,  43  So.  923.  Ga.  527.  61  S.  E.  16;   Peelrick  v. 
858,  43  So.  923.  Peelrick.  134  Ga.  662,  68  S.  E.  515. 

11.  Code  of  Georgia,  1911;  La- 

171 


§234  CAUSES  AUTHORIZING  DIVORCE 

§234.     Guam. 

This  territorial  possession  of  the  United  States  has  no 
divorce  laws.12 

§235.    Hawaii  Territory. 

Causes:  (1)  Adultery;  (2)  wilful  and  utter  desertion  for 
the  period  of  three  years;  (3)  imprisonment  for  life,  or  for 
seven  years  or  more  where  no  pardon  is  granted;  (4)  Chinese 
leprosy  contracted  since  marriage,  if  incurable;  (5)  extreme 
cruelty;  (6)  habitual  intemperance;  (7)  wilful  neglect. 

Procedure:  (The  plaintiff  may  commence  suit  after  a  domi- 
'cile  of  two  years  in  the  territory,  but  no  divorce  may  be 
granted  unless  the  parties  have  lived  as  husband  and  wife 
within  the  territory.  The  cause  may  be  tried  in  the  circuit 
where  it  is  instituted,  after  the  expiration  of  four  months 
from  the  time  of  service  on  the  defendant.  A  divorce  suit  for 
the  cause  of  adultery  must  be  brought  within  one  year  after 
discovery  of  the  offense.13 

§236.    Idaho. 

Causes:  (1)  Adultery;  (2)  extreme  cruelty;  (3)  wilful 
desertion  for  the  period  of  one  year;  (4)  wilful  neglect  by 
husband  for  the  period  of  one  year;  (5)  habitual  intemperance 
for  the  period  of  one  year;  (6)  conviction  of  felony;  (7)  per- 
manent insanity,  where  defendant  has  been  confined  in  a 
state  insane  asylum  for  a  period  of  six  years  next  preceding 
the  commencement  of  the  action,  and  it  shall  appear  by  the 
testimony  that  such  insanity  is  permanent,  and  the  plaintiff 
has  resided  in  the  state  one  whole  year  preceding  the  com- 
mencement of  the  action. 

Procedure:  The  plaintiff  may  commence  the  action  after  a 
domicile  of  one  year  in  the  state.  The  action  is  tried  before 
the  court  after  the  expiration  of  two  months  from  the  time 
of  service  on  the  defendant.  The  decree  does  not  permit 
either  party  to  marry  again  for  the  period  of  six  months 
after  it  is  rendered  and  filed.  A  marriage  of  either  party  be- 
fore that  time  constitutes  bigamy.  The  prosecuting  attorney 
must  defend  all  default  actions  for  the  state.14 

12.  Delasama  v.  Delasama,  201       Hawaii  342. 

U.  S.  303,  50  L.  Ed.  765.  14.     Revised      Code     of     Idaho, 

13.  Revised    Laws    of    Hawaii,  1908;    Laws  of  1915;   Harpold   v. 
1905;    Hebron  v.   Hebron,  11   Ha-  Doyle,   102   Pac.    158;     Hilton    v. 
waii  713;   Proper    v.    Proper,    14  Stewart,   15   Idaho    150,    96    Pac. 
Hawaii   596;   Opiopio  v.  Karre,  7  579,  128  Am.  St.  R.  48. 

172 


IOWA 

§237.     Illinois. 

Cfn/.sv.s:  ill  Impotenry  a  I  time  of  marriage;  (L'j  husband 
or  wife  living  undivorced;  i:!i  adultery  subsequent  to  the 
marriage;  (4)  wilful  desertion  for  two  years  without  cause; 
(5)  habitual  drunkenness  for  two  years;  (6)  attempting  the 
life  of  the  other  spouse  by  poison  or  other  means  showing 
malice;  (7)  extreme  and  repeated  physical  cruelty  endanger- 
ing life  or  health;  (8)  conviction  of  felony  or  other  infamous 
crime. 

rroi-nlun-:  The  plaintiff  may  commence  the  action  after  a 
domicile  of  two  years  in  the  state.  Trial  may  be  had  after 
the  expiration  of  three  mouths  after  service  on  the  defendant. 
The  decree  does  not  permit  either  party  to  marry  until  the 
expiration  of  one  year  from  tthe  time  it  is  rendered  and  tiled. 

The  prosecuting  attorney  must  defend  all  default  actions 
on  behalf  of  the  state.15 

§238.    Indiana. 

Causes:  (1)  Adultery;  (2)  impotency,  existing  at  the  time 
of  the  marriage1;  (3)  abandonment  for  two  years;  (4)  cruel 
and  inhuman  treatment;  (5)  habitual  drunkenness;  (6) 
lailure  of  husband  to  provide  for  family  for  the  period  of  two 
years;  (7)  conviction,  subsequent  to  the  marriage,  of  an  iu 
famous  crime. 

Procedure:'  The  plaintiff  may  commence  the  action  after 
a  domicile  of  two  years  in  the  state.  Trial  may  be  had  after 
the  expiration  of  three  months  from  the  time  of  service  on  the 
defendant.  Unless  there  is  personal  service  on  the  defend- 
ant neither  party  can  marry  again  for  two  years  from  the 
date  of  the  decree.  The  prosecuting  attorney  must  resist  all 
undefended  actions.16 

§239.    Iowa. 

Causes:     (1)    Adultery,  subsequent  to  the  marriage: 
desertion    for   the   period    of   two   years;    (3)    conviction    of 

15.     Revised     Statutes    of    1111-  235  111.  230,  85  N.  E.  207. 
nois,  1913;   Land  v.  Land,  206  111.          16.     Burns'  Annotated   Statutes 

288,  68  N.  E.  1109,  99  Am.  St.  R.  of  Indiana;  State  v.  Friedley,  151 

171;   Becklenberg  v.  Becklenberg,  Ind.   404,   51   N.  E.   473;   West  v. 

232  111.  120,  83  N.  E.  423;  Dorsey  West,  38   Ind.   App.   659,  7  N.   E. 

v.  Brigham,  177  111.  250,  52  N.  E.  987;    Mason   v.    Mason,    101    Ind. 

303,  69  Am.  St.  R.   228,  42  L.  R.  25;    Stone  v.   Stone,  158  Ind.  628. 

A.  809;    Olson   v.   People,   219  111.  64  N.  E.  86;   Day  v.  Hottingham, 

40,  76  N.  E.  89;  People  v.  Spoor,  160  Ind.  408.  66  N.  E.  998. 

173 


§240  CAUSES  AUTHORIZING  DIVORCE 

felony  after  marriage;  (4)  inhuman  treatment  endangering 
the  life  of  the  other  spouse;  (5)  habitual  drunkenness  after 
marriage;  (6)  wife  pregnant  at  time  of  marriage  without  the 
husband's  knowledge  or  agency,  unless  the  husband  has  an 
illegitimate  child,  or  children,  then  living. 

Procedure:  The  plaintiff  must  have  been  domiciled  in  the 
state  for  the  period  of  one  year  before  commencing  the  action. 
The  trial  may  be  had  before  the  court,  and  in  open  court,  after 
the  expiration  of  three  months  from  the  time  of  service  on  the 
defendant.  The  decree  does  not  become  absolute  or  permit 
either  party  to  marry  again  until  the  expiration  of  one  year 
from  the  date  it  is  rendered.17 

§240.    Kansas. 

Causes:  (1)  A  former  husband  or  wife  living,  undivorced; 
(2)  abandonment  for  the  period  of  one  year;  (3)  adultery; 
(4)  impotency;  (5)  pregnancy  of  the  wife  at  the  time  of  the 
marriage  by  another  than  the  husband;  (6)  extreme  cruelty; 
(7)  fraudulent  contract  of  marriage;  (8)  habitual  drunken- 
ness;. (9)  gross  neglect  of  duty;  (10)  conviction  and  im- 
prisonment in  the  penitentiary  for  felony  subsequent  to  the 
marriage. 

Procedure:  The  action  may  be  commenced  after  the  plain- 
tiff has  been  domiciled  in  the  state  for  the  period  of  one  year. 
The  trial  may  be  had  before  the  court  after  the  expiration  of 
two  months  from  the  time  of  service  on  the  defendant  The 
first  decree  is  nisi,  and1  neither  party  can  marry  until  it  be- 
comes absolute,  at  the  end  of  six  months  from  the  date  of  the 
nisi  decree.18 

_^  v 

§241.    Kentucky. 

Causes:  (1)  Abandonment  for  the  period  of  one  year;  (2) 
living  in  adultery;  (3)  condemnation  for  felony;  (4)  conceal- 
ing loathsome  disease  at  the  time  of  the  marriage,  or  con- 
tracting one  afterwards;  (5)  force,  fraud  or  duress  in  pro- 

17.     Revised     Code     of     Iowa,  Iowa  151,  114  N.  W.  631. 

1907;    Laws  of    1913;     Graves    v.  18.     Dassler's   General   Statutes 

Graves,  132  Iowa  199,  109  N.  W.  of  Kansas,   1909;     Masterman    v. 

707,    10   L.   R.    A.     (N.    S.)     216;  Masterman,  58  Kan.  748,  51   Pac. 

Lawrence    v.    Nelson,    113    Iowa  277;  Dunn  v.  Dunn,  59  Kan.  773, 

27T,  85  N.  W.  84,  57  L.  R.  A.  583;  52  Pac.  69;  Roberts  v.  Fagan,  76 

Wood  v.  Wood,  136  Iowa  128,  113  Kan.  536,  92  Pac.  559;  Durland  v. 

N.   W.   492,   12   L.   R.   A.    (N.   S.)  Durland,    67   Kan.     734,    74    Pac. 

891;    Tollefson    v.    Tollefson,    137  274,  63  L.  R.  A.  959. 

174 


LOUISIANA  ?-lU 

rm-mg  marriage;  (6)  uniting  with  a  religious  society  which 
for  bids  husband  and  wife  from  cohabiting,  or  the  rules  of 
which  require  a  renunciation  of  the  marriage  covenant;  -(7) 
such  i m potency  or  malformation  as  prevents  sexual  inter- 
course; (8)  living  apart  without  cohabitation  for  five  con- 
secutive years;  (9)  habitual  drunkenness  for  the  period  of 
one  year;  (10)  husband  guilty  of  such  conduct  as  to  endanger 
the  life  or  health  of  the  wife;  (11)  pregnancy  of  the  wife  at 
the  time  of  the  marriage  without  the  husband's  knowledge  or 
agency,  or  such  lascivious  behaviour  on  her  part  as  proves  her 
to  be  unchaste;  (12)  habitual  drunkenness *of  wife  for  one 
year  if  the  husband  is  not  also  guilty  of  like  cause;  (13)  hus- 
band guilty  of  such  conduct  as  indicates  aversion,  or  destroys 
peace  and  happiness. 

Procedure:  The  action  may  be  commenced  after  the  plain- 
tiff has  been  domiciled  in  the  state  for  the  period  of  one  year. 
The  trial  may  be  had  in  from  three  to  six  months  after  ser- 
vice on  the  defendant,  before  the  court  of  chancery.  The  court 
must  appoint  an  attorney  to  defend  all  uncontested  cases.  The 
action  must  be  brought  within  five  years  after  the  act  com- 
mitted, and  the  act  for  which  divorce  is  sought  must  have  been 
committed  in  Kentucky,  or,  if  outside  of  that  state,  it  must  be 
cause  for  absolute  divorce  in  the  state  where  it  was  com- 
mitted.18 

§242.    Louisiana. 

Causes:  (1)  Adultery (;  (2)  condemnation  to  infamous  pun- 
ishment; (3)  habitual  intemperance,  excesses,  cruel  treat- 
ment or  outrages  of  one  spouse  towards  the  other,  such  as  to 
render  their  living  together  unsupportable ;  (4)  public  defama- 
tion; (5)  abandonment;  (6)  attempts  of  one  against  the  life 
of  the  other;  (7)  on.e  charged  with  infamous  offenses,  fleeing 
from  justice.  In  all  cases  except  adultery,  or  sentence  to  an 
infamous  punishment,  no  divorce  absolute  shall  be  granted 
unless  a  separation  from  bed  and  board  is  first  obtained,  and 

19.     Revised   Statutes    of    Ken-  Parker,  31  Ky.  197,  122  S.  W.  120; 

tucky,  1909;  Williams  v.  Williams,  Parker  v.  Parker,  31  Ky.  L.  Sep. 

136     Ky.     71,     123     S.     W.     337;  1228,    104    S.    W.    1028;    Pope    v. 

Baker  v.  Baker,  136  Ky.  617,  124  Pope,   170   S.   W.    504;     Davis    v. 

S.  W.  866;  Coles  v.  Coles,  130  Ky.  Davis,  102  Ky.  440,  43  S.  W.  168, 

349,   113    S.   W.    417;    Barclay    v.  39  L.  R.  A.  403;  Andrews  v.  An- 

Commonwealth,    116    Ky.    275,   76  drews,    120    Ky.    718,     87     S.    W. 

S.  W.  4;    Sebastian  v.  Rose,  135  1080. 
Ky.  197,  122  S.  W.  120;  Parker  v. 

175 


§243  CAUSES  AUTHORIZING  DIVORCE 

two  years  shall  have  expired  from  the  date  of  the  decree  of 
separation,  and  no  reconciliation  shall  have  taken  place. 

Procedure:  The  courts  of  Louisiana  have  no  jurisdiction 
to  grant  divorce  unless  the  parties,  during  the  marriage  rela- 
tion, have  lived  as  husband  and  wife  in  the  state.  Unless  the 
ground  is  adultery  or  an  infamous  offense,  the  first  action, 
which  may  be  commenced  after  a  domicile  of  one  year,  must 
'  be  for  a  divorce  from  bed  and  board.  If  the  defendant  fails 
to  return  to  the  matrimonial  home  for  a  period  of  one  year 
after  being  summoned  to  do  so,  after  the  expiration  of  two 
years  from  the  date  of  the  decree  for  divorce  from  bed  and 
board,  an  action  for  absolute  divorce  may  be  instituted  by 
the  plaintiff.  Trial  is  had  before  the  court  after  the  expira- 
tion of  three  months  from  the  time  of  service  on  the  defend- 
'  ant.  The  wife  cannot  marry  again  for  ten  months  after 
absolute  divorce.  The  guilty  party  cannot  marry  his  or  her 
paramour.20 

* 
§243.     Maine. 

Causes:  (1)  Adultery;  (2)  impotency;  (3)  extreme  cruelty; 

(4)  utter  desertion  continued  for  the  period  of  three  years; 

(5)  confirmed  habits  of  intoxication;   (6)   cruel  and  abusive 
physical   treatment;    (7)    Jmsband,   being   able,    grossly   and 
wantonly  neglects  to  provide  maintenance  for  the  wife;    (8) 
insanity  when  in  consequence  thereof  the  defendant  has  been 
committed  to  and  confined  in  a  state  asylum  for  the  insane 
for  fifteen  consecutive  years  next  preceding  the  commence- 
ment of  the  action,  and  if  found  to  be  incurable. 

Procedure:  The  action  may  be  commenced  after  the  plain- 
tiff has  been  domiciled  in  the  state  for  the  period  of  one  year. 
The  trial  may  be  had  in  from  four  to  six  months  after  service 
on  the  defendant,  depending  on  terms  of  court.  Either  party 

20.     Revised     Laws     of     Louis-  47,    38    So.    890,    112    Am.    St.    R. 

iana,    1910;    Revised    Civil    Code  266;    Ellerbusch    v.     Koegel,     108 

of     Louisiana,      1909;      State     v.  La.   51,   32   So.   191;    Hill  v.   Hill, 

Boettner,    53    So.    555;    Nissen   v.  114  La.  117,  38   So.   77;    Cornelia 

Farquar,  121  La.  119,  44  So.  799;  v.   Cornelia,    114    L.    A.     950,     38 

Elmore  v.  Johnson,  121  La.   277,  So.     690;'    Ramond     v.     Carrano, 

46    So.    310;    Rohr    v.    Stechman,  112    La.    869,    36    So.    787;    Blake 

119   La.    159,   43   So.   991;    Succes-  v.    Dudley,    111    La.    1096,    36    So. 

sion   of  Gabisso,   119  L.  A.   1035,  203;    Nichols   v.    Maddox,   52   La. 

44   So.   856,   11   L.   R.   A.    (N.   S.)  An.   1493,   27  So.  966. 
1082;    Wilcox    v.    Nixon,    115    La. 

176 


M  ASSACH  U  SETTS  i  -  I  "• 

may  demand  a  jury  trial.     The  plaint  ill'  must   have  res  hied  ill 
the  state  when  the  cause  occurred.21 

§244.     Maryland. 

Causes:  (1)  Impotency;  (2)  any  cause  which  by  the  laws 
of  the  state  render  the  marriage  null  and  void  ab  initio;  (3) 
adultery;  (4)  deliberate  and  filial  abandonment  for  the  period 
of  three  j*ears;  (5)  illicit  carnal  intercourse  of  the  wife  with 
a  man,  other  than  the  husband,  before  marriage  without  the 
husband's  knowledge. 

Procedure:  The  action  may  be  commenced  at  any  time  if 
the  cause  of  action  was  committed  in  the  state.  Otherwise 
either  the  plaintiff  or  the  defendant  must  have  had  a  domi- 
cile in  the  state  for  the  period  of  two  years  before  commence- 
ment of  the  action.  The  cause  may  be  tried  and  determined 
after  the  expiration  of  five  months  from  the  comment -emeni 
of  the  action.  Trial  is  had  on  the  equity  side  of  the  court.22 

§245.     Massachusetts. 

Causes:  (1)  Adultery;  (2)  impotency;  (3)  utter  desertion 
continued  for  three  consecutive  years  next  preceding  com- 
mencement of  the  action;  (4)  gross  and  confirmed  habit  of 
intoxication;  (5)  cruel  and  abusive  treatment;  (6)  neglect  of 
husband  to  provide  suitable  maintenance  for  the  wife  when  of 
sufficient  ability  so  to  do;  (7)  sentence  to  confinement  at  hard 
labor  for  life  or  five  years  or  more,  in  the  state  prison,  jail  or 
house  of  correction. 

Procedure:  If  the  parties  have  ever  lived  as  husband  ami 
wife  in  Massachusetts,  the  action  may  be  commenced  after 
either  party  has  had  a  domicile  of  three  years  in  the  state, 
otherwise  the  plaintiff  must  have  been  domiciled  in  the  siai.- 
for  the  period  of  five  years  before  commencing  the  action. 

The  trial  may  be  had  two  months  after  service  on  the  de- 
'fendant.  The  first  decree  is  nisi,  and  does  not  dissolve  the 
marriage,  or  allow  either  party  to  marry  again.  An  absolute 
divorce  may  be  entered  six  months  after  the  nisi  decree,  if  no 

21.  Revised  Statutes  of  Maine,  Maryland,      1904;       Wheeler      v. 
1903;    Walker  v.  Walker,  89  Atl.  Wheeler,    101    Md.    436,    61    Atl. 
373;  Leathers  v.  Leathers,  19  Atl.  216;    McSherry    v.    McSherry,    77 
16;    Spinney    v.    Spinney,    87   Me.  Atl.    653;    Adams   v.   Adams,    101 
484,  32  Atl.  1019.  Md.  506,  61  Atl.  628. 

22.  Public     General     Laws    of 

177 


^5 


§246  CAUSES  AUTHORIZING  DIVORCE 

cause  is  shown  to  the  contrary.     The    guilty    party    cannot 
marry  for  two  years  after  the  absolute  divorce  is  entered.23 

§246.    Michigan,  r^ 

Causes:  (1)  Adultery;  (2)  jmpotency  at  the  time  of  the 
marriage;  (3)  imprisonment  for  three  years  in  any  prison, 
jail  or  house  of  correction;  (4)  habitual  drunkenness;  (5) 
defendant  having  obtained  a  divorce  in  another  state;  (6) 
desertion  for  two  years  p  (1}  neglect  and  refusal  of  the  hus- 
band  to  support  the  wife  when  of  sufficient  ability  so  to  do; 
S)'  extreme  cruelty. 

Procedure:  Unless  the  defendant  is  domiciled  in  thfe  state 
and  served  therein  with  process  when  the  suit  is  filed,  or  the 
parties  have  lived  together  as  husband  and  wife  in  Michigan, 
suit  cannot  be  commenced  until  the  plaintiff  has  been  doini- 
ciled  in  the  state  two  years.  Except  for  the  cause  of  deser-  I 
tion,  the  trial  cannot  be  had  until  the  expiration  of  two 
months  from  the  time  of  commencement  of  the  suit.  The 
hearing  is  had  in  the  court  of  chancery,  in  open  court,  unless 
the  court  orders  a  reference  to  a  circuit  court  commissioner 
or  other  person  authorized  to  administer  oaths,  to  take  the_ 
testimony.  In  all  cases  where  there  are  minor  children  ser- 
vice of  process  must  be  made  on  the  prosecuting  attorney  of 
the  county  where  the  suit  is  pending.  The  court  may  order 
the  prosecuting  attorney  to  appear  in  any  uncontested  case.24 

§247.    Minnesota. 

Causes:  (1)  Adultery;  (2)  impotency;  (3)  cruel  and  in- 
human treatment;  (4)  sentence  to  imprisonment  in  any  state 
prison  or  state  reformatory  subsequent  to  the  marriage;  (5) 
wilful  desertion  for  one  year. 

23.     Revised    Laws    of    Massa-  145;  Winans  v.  Winans,  205  Mass.. 

chusetts,    f902    and    Supp.    1908;  388,  91  N.  E.  394,  28  L.  R.  A.  (N. 

Commonwealth    v.     Stevens,     196  S.)    992.  tl  fa<* 

Mass.   280,   82  N.  E.   33,   124  Am.  24.     C.  L.   1915,    (11433);   How. 

St.  R.  555;  Whippen  v.  Whippen,  2nd.   Ed.,   §11494;    Filer  v.   Filer, 

171    Mass.    560,     51     N.     E.     174;  77  Mich.  469,  43  N.  W.  887;  Coon 

Chace    v.    Chace,    191    Mass.    166,  v.  Coon,  129  N.  W.  12;  Bradfield 

77  N.  E.  782;  Tyler  v.  Tyler,  170  v.    Bradfield,    154    Mich.    115,    117 

Mass.  150,  48  N.  E.  1075;   Brown  N.   W.   588;    Jamison  v.   Ramsey, 

v.    Brown,   93   N.   E.    607;    Frank-  128    Mich.    315,    87    N.    W.    260; 

lin    v.    Franklin,    190    Mass.    349,  Bentley  v.  Hosmer,  110  Mich.  626, 

77   N.   E.   48,   4   L.   R.   A.    (N.   S.)  68   N.   W.   650,  69   N.  W.   660. 

178 


MISSOURI  ?-!'•> 

Procedure:  The  suit  may  be  commenced  after  the  plain i  ill 
has  beeii  domiciled  iu  the  state  one  year.  The  trial  may  be 
had  after  the  expiration  of  two  months  from  the  time  of  ser- 
vice on  the  defendant.  -The  decree  does  not  become  absolute 
so  as  to  permit  either  party  to  marry  again  until  six  months 
after  it  is  filed  in  the  clerk's  office.25 

§248.     Mississippi. 

Causes:' (1)  Adultery;  (2)  natural  impoteucy;  (3)  sentence 
in  i  he  penitentiary;  (4)  wilful,  continued  and  obstinate  de- 
sertion for  two  years;  (5)  habitual  drunkenness:  i»»i  habitual 
use  of  morphine,  opium  or  other  like  drug;  (7)  habitual,  cruel 
and  inhuman  treatment;  (8)  insanity  or  idiocy  ai  the  time 
of  the  marriage,  unknown  to  the  other  party;  i  !h  another  hus- 
band or  wife  living,  uudivorced ;  (10 1  pre^nanc -y  ..I  the  wife 
ai  ilie  time  of  the  marriage,  unknown  to  the  husband  ami 
without  his  agency;  (11)  consanguinity. 

I'rnrcilm-c:  I'nless  both  parties  are  domiciled  in  the  state 
of  Mississippi  when  the  action  is  commenced  and  the  defend- 
ant served  with  process  within  the  state,  the  action  cannot 
be  commenced  until  one  of  the  parties  has  had  an  actual  domi- 
cile in  the  state  for  the  period  of  one  year.  The  trial  may 
be  had  in  the  court  of  chancery  three  mouths  after  service  on 
the  defendant.-'1'1 

§249.     Missouri.. 

Causes:  (1)  Impotency  at  the  time  of  the  marriage;  (-) 
another  husband  or  wife  living,  undivorced;  (3)  desertion  for 
the  period  of  one  year;  (4)  adultery  committed  since  the  mar- 
riage; (5)  conviction  of  felony  or  infamous  crime  since  the 
marriage;  (6)  habitual  drunkenness  for  the  period  of  one 
year;  (7)  cruel  and  barbarous  treatment  endangering  the 
life  of  the  other;  (8)  indignities  rendering  the  marriage  n 
lation  intolerable;  (!))  husband  becoming  a  vagrant;  (10) 
conviction  of  felony  or  infamous  crime  prior  to  the  marriage. 

25.    Revised     Laws     of   Minne-  Am.   St.   R.   371;    Wilson   v.   Wil- 

sota,  1913;  State  v.  Yoder,  130  N.  son,  95  Minn.  464,  104  N.  W.  300. 

W.     10;     State     v.    Blue    Earth  26.    Code  of  Mississippi,   1906; 

County    Court,    125    N.    W.    133;  Sutter  v.  Sutler,  72  Miss.  345,  16 

Betchel     v.     Betchel,     101     Minn.  So.    673;     Graves    v.    Graves,    80 

511,   112  N.  W.   382,   12  L.  R.  A.  Miss.    677,    41   So.   384;    Grego   v. 

(N.  S.)  1100:  Sodini  v.  Sodini,  94  Grego,   78   Miss.   443,   28   So.   817. 
Minn.    301,    102    N.    W.    861,    110 


§250  CAUSES  AUTHORIZING  DIVORCE 

unknown  to  the  other  party  at  the  time  of  the  marriage;  (11) 
the  wife  being  pregnant  at  the  time  of  the  marriage,  by  one 
other  than  the  husband,  and  without  the  husband's  knowledge 
at  the  time  of  the  marriage. 

Procedure:  The  action  cannot  be  commenced  until  after 
the  plaintiff  has  been  domiciled  in  the  state  for  the  period  of 
one  year.  The  cause  may  be  tried  three  months  after  service 
on  the  defendant.  Actions  for  divorce  are  tried  before  the 
court.27 

§250.    Montana. 

Causes:  -(1)  Adultery;  (2)  extreme  cruelty;  (3)  wilful 
desertion  for  one  year;  (4)  habitual  intemperance  for  the 
period  of  one  year;  (5)  conviction  of  felony. 

Procedure:  The  action  cannot  be  commenced  until  the 
plaintiff  has  been  domiciled  in  the  state  for  the  period  of  one 
year.  The  cause  may  be  tried  before  the  court  after  the  ex- 
piration of  three  months  from  the  time  of  service  on  the  de- 
fendant. Neither  can  marry  again  for  the  period  of  two 
years  after  the  divorce  is  granted.28 

$251.    Nebraska. 

Causes:  (1)  Adultery;  (2)  iinpotency  at  time  of  marriage; 
(3) imprisonment  in  any  prison,  jail  or  house  of  correction 
for  the  period  of  three  years  or  more;  (4)  desertion  for  the 
period  of  two  years;  (5)  habitual  drunkenness;  (6)  sentence 
to  imprisonment  for  life. 

Procedure:  If  the  cause  of  action  arose  in  the  state,  the 
action  may  be  commenced  after  the  plaintiff  has  been  domi- 
ciled in  the  state  for«  the  period  of  one  year.  If  the  cause  of 
action  arose  outside  of  the  state,  the  action  cannot  be  com- 
menced until  the  plaintiff  has  been  domiciled  within  the  state 
for  two  years.  Trial  may  be  had  before  the  court  after  the 
expiration  of  two  months  from  service  on  the  defendant.  The 
decree  does  not  become  final  or  operative  until  the  expiration 

27.     Revised     Statutes    of    Mis-  W.  1157. 

souri,    1900;     State    v.    Hubbard,  28.     Revised   Code   of  Montana, 

201  Mo.  639',  100  S.  W.  586;   Rob-  1907;    State    v.     Dist.     Court,     38 

inson  v.  Robinson,  129  S.  W.  725;  Mont.   166,   99   Pac.   291,   129   Am. 

Keller   v.  Keller,   129    S.  W.   492;  St.  R.  636;  Franklin  v.  Franklin, 

Humphrey  v.  Humphrey,  115  Mo.  106  Pac.  353;    Rumping  v.  Rurnp- 

App.  361,  91  S.  W.  405;    Stone  v.  ing,    36    Mont.    39,    91    Pac.    1057, 

Stone,    134   Mo.   App.    242,   113    S.  12  L.  R.  A.   (N.  S.)   1197. 

180 


.\K\\    1 1.  \\irsiiiKi:  S-~>:> 

of  six  months  from  tin-  time  it  entered,  .md  neither  party  c;in 
marry  again  until    it   becomes  final.   ' 

$252.     Nevada. 

Causes:     (1)   Impotency  at  the  time  of  the  marriage;   (2) 
adultery    since   the    marriage;     i.T)    wilful    desertion    for    the 
period  of, one  year:    (4)    conviction   of  a  felony  or  other  in 
t'.-imoiis  crime:    i .".  i    h;ibitual  and  gross  driiiikenness ;    (6)    ex- 
ireine  cruelty  by  either  party. 

1'rnrrtlnrr:  The  action  may  be  commenced  after  the  plain 
titV  has  been  domiciled  in  the  state  for  the  period  of  one 
year.  The  cause  may  be  tried  after  the  expiration  of  five 
months  from  the  time  of  service  on  the  defendant,  and  less 
time  if  the  service  is  made  within  the  state  of  Nebraska.  The 
cause  may  be  tried  in  open  court  at  a  regular  term  in  the 
county  of  the  plaintiffs  domicile.30 

§253.    New  Hampshire. 

Causes:  (1)  Impotency;  (2)  adultery;  (3)  extreme  cruelty  : 
(4)  conviction  of  crime  punishable  by  imprisonment  for  the 
period  of  one  year,  and  actual  imprisonment  thereunder ;  i  •"»  i 
conduct  seriously  injuring  the  health  of  the  other;  (G)  con 
duct  seriously  endangering  reason;  (7)  absence  Tor  three 
years  unheard  of:  iS)  habitual  drunkenness  for  the  period  of 
three  years;  (9)  joining  a  religious  society  which  believes  and 
teaches  that  the  relation  of  husband  and  wife  is  unlawful,  and 
refusal  to  cohabit  for  the  period  of  six  months;  (10)  abandon- 
ment without  cohabitation  for  three  years;  (11)  wife  absent 
ing  herself  for  three  years;  (12)  husband  absenting  himself 
for  three  years,  without  provision  for  the  support  of  the  wife; 
(13)  the  wife  of  a  citizen  going  to  reside  beyond  the  limits  of 
the  state,  and  remaining  absent  and  separated  for  the  period 
of  ten  years,  without  the  consent  of  the  husband,  or  without 
claiming  her  marriage  rights;  (14)  wife  of  an  alien,  or  citi- 
7.c\\  of  another  state,  residing  in  this  state  three  years,  her 

29.     Compiled    Statutes    of   Ne-  99   N.   W.   482;    Pine   v.  Pine,   72 

braska,     1911;     Lumber     Co.     v.  Neb.  463,  100  N.  W.  938. 

Dewey,   126   N.   W.   87;    Eaton   v.  30.     Compiled  Laws  of  Nevada, 

Eaton,    66    Neb.    676,    92    N.    W.  1912;    Laws  of  1913;    Kapps.   7th 

995,  60  L.  R.  A.  605;  Kirkpatrick  district  Court,   107  Pac.   95;   Mc- 

v/Kirkpatrick,   81   Neb.   627,   116  Kinn  v.   2nd.   District  Court,   110 

\     W.   499,    129   Am.   St.   R.  708;  Pac.     4;      Worthington    v.     Dist. 

Schafer   v.   Schat'er,   71   Neb.   708,  Court,  142  Pac.  238. 

181 


§254  CAUSES  AUTHORIZING  DIVORCE 

husband  having  left  the  United  States  with  the  intention  of 
becoming  a  citizen  of  a  foreign  country,  and  not  having  come 
into  this  state  during  said  period  and  claimed  his  marital 
rights,  or  made  suitable  provision  for  his  wife's  support  and 
maintenance. 

Procedure:  The  action  may  be  commenced  after  the  plain- 
tiff has  been  domiciled  in  the  state  for  the 'period  of  one 
year.  The  cause  may  be  tried  before  the  court  after  the  ex- 
piration of  four  months  from  the  time  of  service  on  the  de- 
fendant.31 

§254.    New  Jersey. 

Causes:  (1)  Adultery;  (2)  wilful  continued  and  obstinate 
desertion  for  the  term  of  two  years. 

Procedure:  The  action  cannot  be  commenced  until  the 
plaintiff  has  had  a  domicile  in  the  state  fpr  the  term  of  two 
years,  and  no  divorce  can  be  granted  unless  the  cause  .9f 
action  arose  while  either  the  plaintiff  or  the  defendant  was 
domiciled  in  the  state,  unless  the  act  complained  Df  was  a 
cause  for  divorce  under  the  laws  of  the  state  of  the  domicile 
of  one  of  the  parties  at  the  time  it  was  committed.  The  trial 
may  be  had  before  the  court  of  Chancery,  after  the  expira- 
tion of  six  months  from  the  time  of  service  on  the  defend- 
ant, and  after  the  report  of  the  commissioner  is  filed  with 
the  court.  The  first  decree  is  nisi  and  does  not  become  ab- 
solute until  the  expiration  of  six  months,  or,  if  an  appeal  is 
taken,  until  the  appeal  is  decided,  during  which  time  neither 
party  can  again  marry.  A  jury  trial  may  be  had.  All  de- 
cisions prior  to  1907,  when  an  entire  new  divorce  act  was 
passed  by  the  legislature,  are  entirely  inapplicable,  except  as 
to  what  acts  constitute  ground  for  divorce.32 

§255.    New  Mexico. 

Causes:  (1)  Abandonment;  (2)  adultery;  (3)  impoteucy: 
(4)  the  wife  pregnant  at  the  time  of  the  marriage,  by  another 
than  the  husband,  without  his  knowledge;  (5)  cruel  and  in- 

31.     Public     Statutes     of     New  32.     Compiled   St.   1910,  Vol.   2, 

Hampshire,  1901 ;  Drake  7.  Drake,  pp.    2030-2032;    Flynn    v.    Flynn, 

7S  Atl  1071;  Sworoski  7.  Swore-  (N.  J.)  92  Atl.  645;  Koch  v.  Koch, 
ski  75  N.  H.  1,  70  Atl.  119;  -  79  N.  J.  Eq.  24,  80  Atl.  113; 

Shute   v    Sargent,    67   N.   H.    305,  Getz   v.    Getz,    81   N.    J.    Eq.    465, 

36  Atl    282;    Hillard  v.   Baldwin,  81  Atl.   376;   Mason  v.  Mason,   69^ 

80  Atl.  139.  N.  J.  Eq.   292,  60  Atl.   337. 

182 


\oRTIl    CAROLINA  gZul 

humau  treatment;  (6)  neglect  of  the  husband  to  support  the 
wife  according  to  his  ability,  means  and  station  in  life;  (7) 
habitual  drunkenness;  (8)  conviction  and  imprisonment  for 
felony. 

Procedure:  The  action  cannot  be  commenced  until  the 
plaintiff  has  been  domiciled  in  the  state  for  the  period  of  one 
year.  The  trial  may  be  had  after  the  expiration  of  three 
months  from  the  time  of  service  on  the  defendant.  The  first 
decree  is  nisi,  and  does  not  become  absolute,  or  allow  either 
party  to  marry  again,  until  the  expiration  of  six  months  from 
i  he  date  of  the  nisi  decree.83 

§256.     New  York. 

Causes:  In  the  State  of  New  York  the  only  ground  for  ab-. 
-olute  divorce  is  adultery. 

Procedure:  Unless  the  offense  was  committed  in  the  state, 
while  one  or  both  of  the  parties  were  domiciled  therein,  the 
plaintiff  must  have  had  a  domicile  within  the  state  for  the 
period  of  one  year  before  commencing  the  action.  The  trial 
may  be  had  after  the  expiration  of  two  months  from  the  time  of 
service  on  the  defendant.  In  contested  cases  the  trial  is  by 
jury,  unless  the  parties  stipulate  that  the  hearing  shall  lu- 
ll ad  before  a  referee.  Un contested  cases  are  tried  by  the  court. 
The  first  decree  is  nisi  and  does  not  permit  either  party  to 
marry,  or  dissolve  the  marriage.  The  nisi  decree  does  not 
become  absolute,  automatically,  but  upon  application  of  the 
party  entitled  to  it.  After  the  nisi  decree  has  been  recorded 
three  months  it  may  be  made  absolute.  The  nisi  decree  can- 
not be  made  absolute  if  the  party  entitled  to  it  does  not  so 
ties  ire,  and  it  does  not  become  and  cannot  be  made  absolute  in 
case  of  ihc  death  of  either  party.  The  final  judgment  cannot 
stand  if  the  parties  cohabit  after  the  interlocutory  decree.84 

§257.     North  Carolina. 

CiiHxf'*:  (1)  Living  in  adultery;  (2)  separation  for  ten 
years,  ff  there  are  no  children,  issue  of  the  marriage. 

33.  Compiled     Laws     of    New  N.   E.    578,   134  Am.   St.   R.   830; 
Mexico.    1897;    Session    Laws    of  Ptttit    v.    Petiit.   93   N.   Y.   Supp. 
1897   to    1911;    Territory   v.    Har-  1001,   105   App.   Div.   312;   Adams 
wood,   110   Pac.   556.  v.  Adams,  106  N.  Y.  Supp.  1064; 

34.  Consolidated   Laws  of  New  Gary  v.   Gary,   129    N.    Y.    Supp. 
York,   1909;    New   Code    of    Civil  444;  Dye  v.  Dye,  125  N.  Y.  Supp. 
Procedure    (N.   Y.),   1911;    In   Re  242;    In    Re     Newcomb's     Estate, 
Craiulall's  Zst.,  196  N.  Y.  127,  89  192  N.  Y.   238,  84  N.  E.  950. 

183 


§258  CAUSES  AUTHORIZING  DIVORCE 

Procedure:  The  plaintiff  must  have  lived  in  the  state  for 
the  period  of  two  years  before  commencing  the  action,  if 
adultery  is  the  cause  for  which  divorce  is  sought,  and  for  ten 
years  if  living  separate  is  the  cause.  The  cause  must  be 
tried  by  a  jury  and  a  verdict  in  favor  of  absolute  divorce 
rendered,  before  the  court  can  enter  such  decree.35 

§258.    North  Dakota. 

Causes:  (1)  Adultery;  (2)  extreme  cruelty;  (3)  wilful 
neglect  of  wife  for  one  year;  (5)  habitual  intemperance  for 
the  period  of  one  year;  (6)  conviction  of  a  felony. 

Procedure:  The  action  may  be  commenced  after  the  plain- 
tiff has  had  a  domicile  within  the  state  for  the  term  of  one 
year,  if  the  plaintiff  is  a  citizen  of  the  United  States.  Other- 
wise the  plaintiff  must  live  in  the  state,  or  some  other  part  of 
the  United  States,  for  the  period  of  two  years,  and  must  have 
declared  intention  to  become  a  citizen  of  the  United  States. 
The  action  may  be  tried  after  the  expiration  of  thirty  days 
from  the  time  of  service  on  the  defendant.  The  first  decree 
is  nisi  and  does  not  permit  either  party  to  marry  again  for 
the  term  of  three  months  'from  the  date  it  is  entered.36 

§259.     Ohio. 

Causes:  (1)  Husband  or  wife  living  at  the  time  of  the 
marriage;  (2)  wilful  absence  for  three  years;  (3)  adultery; 
(4)  inipotency:  (5)  extreme  cruelty ;  (6)  fraudulent  marriage 
contract;  (7)  gross  neglect  of  duty;  (8)  habitual  drunkenness 
for  three  years;  (9)  imprisonment  in  the  state  penitentiary; 
(10)  defendant  obtaining  a  divorce  in  another  state. 

Procedure:  The  plaintiff  must  have  been  domiciled  in  the 
state  for  the  term  of  one  year  before  commencing  the  action. 
The  cause  may  be  tried  after  the  expiration  of  five  months 
from  the  time  of  service  on  the  defendant,  where  the  defend- 
ant is  a  non-resident  of  the  state.  If  the  defendant  is- a  resi- 

35.     Revised    Laws    of     North  36.     Revised     Code     of     North 

Carolina,   1905;    Session   Laws   of  Dakota,  1913;  Weimer  v.  Weimer, 

North   Carolina,    1907-1913;     Kin-  .130  N.  W.  1015;   State  v.  Tem*le- 

ney  v.  Kinney,  149  N.  C.  321,  63  ton,   123   N.  W.   283,   25   L.   R.  A. 

S.  E.  97;   Cook  v.  Cook,  80  S.  E.  (N.   S.)    234;    Mosher   v.   Mosher, 

178;     Pendergast    v.    Pendergast,  113    N.   W.    99,   12   L.   R.   A.    (N. 

146   N.  C.  225,  59  S.  E.   692;   Me-  S.)     820;    Rindlaub    v.    Rindlaub, 

Kenzie  v.  McKenzie,  69  S.  E.  134.  123  N.  W.  479. 

184 


OREGON 

<irnt  of  the  state,  the  cause  may  be  tried  after  tin-  expiration 
of  th  re<?  months  from  the  date  of  service."7 

§260.     Oklahoma. 

Causes:  (1)  Former  husband  or  wife  living,  undivorced; 
(2)  abandonment  for  fhe  term  of  one  year;  (3)  adultery; 
I  i  iinpotency;  (5)  pregnancy  of  the  wife  at  the  time  of  the 
marriage,  by  one  other  than  the  husband,  without  his  knowl- 
edge; (6)  extreme  cruelty;  (7)  fraudulent  contract  of  mar- 
riage; (8)  habitual  drunkenness;  (9)  gross  neglect  of  duty; 
i  10)  conviction  and  imprisonment  for  felony  subsequent  to 
Hie  marriage. 

Procedure:  The  plaintiff  must  have  had  a  domicile  within 
the  state  for  the  period  of  one  year  before  commencing  the 
action.  The  trial  may  be  had  after  the  expiration  of  two 
months  from  the  date  of  service  on  the  defendant.  The  first 
decree  is  nisi,  and  does  not  become  absolute  or  permit  either 
party  to  many  again  for  the  period  of  six  months  after  ren- 
dition and  filing.88 

§261.     Oregon. 

Causes:  (1)  Iinpotency  at  the  time  of  the  marriage,  con- 
tinuing to  the  date  of  the  commencement  of  the  suit;  (2) 
adultery;  (3)  conviction  of  felony;  (4)  habitual  gross  drunk- 
enness, contracted  since  the  marriage,  and  continuing  for  the 
term  of  one  year  prior  to  the  commencement  of  the  action ; 
(5)  wilful  desertion  for  one  year;  (6)  cruel  and  inhuman 
treatment  or  personal  indignities  rendering  life  burdensome. 

Procedure:  The  action  may  be  commenced  when  the  plain- 
tiff has  been  domiciled  within  the  state  for  the  term  of  one 
year.  Service  must  be  made  on  the  district  attorney,  as  well 
as  on  the  defendant,  who  must  defend  on  behalf  of  the  state. 
The  trial  may  be  had  after  the  expiration  of  two  months  from 
the  time  of  service  on  the  defendant  and  district  attorney. 
The  decree  does  not  allow  either  party  to  marry  for  the  term 
of  six  months  after  it  is  rendered.89 

37.  General  Code  of  Ohio,  1910;  Pac.   373;    Newman    v.    Newman, 
Julier   v.   Julier,   62   O.   S.   90,   56  112  Pac.  1007;  Fidelity  v.  Brown, 
N.   E.   661,   78    Am.     St.    R.     697;  69  S.  W.  915;    Rogers  v.  Nichols. 
Coffman   v.  Coffman,  65  O.  S.  61,  15  Okla.  579,  83  Pac.  923. 

61   N.   E.    155,   55   L.   R.    A.   794;          39.     Lord's  Oregon  Laws,  1911; 

Gilbert  v.  Gilbert,  94  N.  E.  421.  Session   Laws,    1911-1913;    Parish 

38.  General    Statutes    of   Okla-  v.    Parish,   52   Ore.   162,    96    Pac. 
homa,  1909;   Orcutt  v.  Orcutt,  108  1066;   McLennan   v.  McLennan  31 

185 


§262  CAUSES  AUTHORIZING  DIVORCE 

§262.     Pennsylvania. 

Causes:  (1)  Impoteucy  at  the  time  of  the  marriage;  (2) 
another  husband  or  wife  living,  undivorced ;  (3)  adultery; 
(4)  desertion  for  two  years;  (5)  cruel  and  barbarous  treat- 
ment endangering  the  life  of  the  wife;  (6)  consanguinity;  (7) 
fraud,  force  or  coercion;  (8)  conviction  of  infamous  crime  and 
imprisonment  for  two  years  thereunder. 

Procedure:  The  action  may  be  commenced  after  the  plaiu- 
tiff  has  been  domiciled  in  the  state  for  the  period  of  one  year. 
A  jury  trial  may  be  demanded.  The  trial  may  be  had  after 
the  expiration  of  six  months  from  the  date  of  service  on  the 
defendant.40 

§263.    Porto  Rico. 

Causes:  (1)  Adultery;  (2)  conviction  of  felony,  involving 
loss  of  civil  rights;  (3)  habitual  drunkenness,  or  the  con- 
tinued and  excessive  use  of  morphine,  opium,  or  other  nar- 
cotic; (4)  cruel  treatment  or  grave  injury;  (5)  abandonment 
for  more  than  one  year;  (6)  absolute,  perpetual  and  incurable 
impotency,  arising  after  marriage;  (7)  attempt  or  connivance 
of  husband  or  wife  to  corrupt  their  sons,  or  prostitute  their 
daughters;  (8)  the  proposal  of  the  husband  to  prostitute  the 
wife. 

Procedure:  The  plaintiff  must  have  been  domiciled  in 
Porto  Rico  for  the  period  of  one  year  before  commencing  the 
action,  unless  the  cause  arose  while  both  parties  were  living- 
there.  The  cause  may  be  tried  by  the  district  court  after  the 
expiration  of  three  months  from  the  date  of  service  on  the 
defendant.  A  woman  cannot  again  marry  for  three  hundred 
and  one  days  after  being  divorded.41 

§264.    Rhode  Island. 

Causes:  (1)  When  marriage  is  originally  void,  or  voidable, 
or  where  either  party  deemed  civilly  dead,  for  crime,  or  from 
absence  is  presumed  to  be  actually  dead;  (2)  impotency;  (3) 
adultery;  (4)  extreme  cruelty;  (5)  wilful  desertion  for  five 

Ore.  480,  50  Pac.  802,  65  Am.  St.  44  Pa.   Sup.    Ct.     118;     Dulin    v. 

R.  835,  38  L.  R.  A.  863;  Huffman  Dulin,    33    Id.     4;     Baughman     v. 

v.  Huffman,  47  Ore.  610,  86  Pac.  Baughman,  34  Id.  271;   Gordon  v. 

593,  114  Am.  St.  R.  943.  Gordon,   208  Pa.  186,  57  All.   525. 

40.     Pennsylvania    Statutes,  41.     Revised  Statutes  and  Code 

1911;  McClain  v.  McClain,  40  Pa.  of  Porto  Rico,  1913. 
Supr.    Ct.    248;    Heath   v.    Heath, 

186 


S(M  Til    HAKOTA  £-<'»»'» 

\ears;  i  tii  wilful  desertion  for  a  shorter  period  iii  the  discre 
tion  of  the  court;  (7)  continued  drunkenness;  (8)  excessive 
and  intemperate  use  of  morphine,  opium,  or  chloral;  (9)  neg- 
lect and  refusal  of  the  husband,  he  having  the  ability,  for  at 
least  one  year  to  provide  the  wife  with  the  necessaries  of 
life;  (10)  gross  misbehavior  and  wickedness  repugnant  to, 
and  in  violation  of,  the  marriage  covenant;  (11)  living  sep- 
arate and  apart  for  the  period  of  ten  years,  in  the  discretion 
«•!'  the  court. 

I'r<,<n1i<r<  :  The  plaintiff  must  have  had  a  domicile  in  the 
-late  for  two  years  before  commencing  suit.  The  cause  may 
be  tried  two  months  after  service  on  tyie  defendant.  The 
lirst  decree  is  nifti,  and  does  not  permit  the  parties  to  marry 
again  for  the  period  'of  six  months  after  the  decree  nisi,  or 
pending  a  decision  on  appeal  if  one  is  taken.42 

§265.     South  Carolina. 

CUIIXI-N:  No  absolute  divorce  can  be  granted  in  South 
Carolina  for  any  cause.  The  state  has  no  divorce  laws,  and 
the  legislature  is  forbidden  by  the  constitution  of  the  state 
from  passing  any  divorce  legislation.43 

§266.     South  Dakota. 

(7ffw.vr.s-;  ill  Consanguinity  nearer  than  second  cousin  ;  (2t 
fraudulent- marriage  contract;  (3)  force  in  bringing  about  the 
marriage:  (4\  duress  in  compelling  marriage;  (5)  unsound 
mind  of  either  party;  (6)  another  husband  or  wife  living  un- 
divorced;  (7)  non-age;  (8)  impotency;  (9)  adultery;  (10) 
extreme  cruelty,  physical  or  mental:  (11)  wilful  desertion  for 
one  year;  (12)  one  party  driving  the  other  from  home  by 
cruelty,  threats,  stratagem,  or  fraud;  (13)  refusal  of  matri- 
monial intercourse  for  one  year;  (14)  failure  of  the  husband 
to  support  the  wife  for  one  year;  (15)  habitual  intemperance 
for  one  \ear:  ilfi)  conviction  of  felony. 

Prornlun-:    The  action  may  be  commenced  after  the  plain- 
tiff   has   had    a    domicile    in    the   stale    for    the    period    of    six 
months.     The  cause  may  be  tried  by  the  court,  on  the  equity 
side,  after  the  expiration  of  thirty  days  from  the  time  oi 
vice  on  the  defendant.     If  the  cause  occurred  while  the  plain 

42.     General     Laws     of    Rhode  Walker,  78  Atl.  339. 
Island.  1909;   Thrift  v.  .Thrift,  75          43.     Messervey  v.  Messervey,  80 

Atl.  484;    Warren  v.    Warren,    78  S.  C..277,  61   S.  E.   442.  67   S.  E. 

Atl.  1041,  79  Atl.  678;   Walker  v.  130. 

187 


§267  CAUSES  AUTHORIZING  DIVORCE 

tiff  was  domiciled  without  the  state,  one  year's  domicile  is 
required. 

Annulment  suits  are  governed  by  the  provisions  respecting 
citizenship,  which,  like  domicile,  is  acquired  in  six  months.44 

§267.    Tennessee. 

Causes:  (I)  Impotency  and  incapacity  for  procreation  at 
the  time  of  the  marriage;  (2)  another  marriage  existing  un- 
dissolved;  (3)  adultery;  (4)  wilful,  malicious  desertion  for 
two  years;  (5)  conviction  of  a  crime  which  the  laws  of  the 
state  make  infamous;  (6)  conviction  of  felony  and. sentence 
to  the  penitentiary.;  (7)  attempting  the  life  of  the  other  by 
poison,  or  other  means  showing  malice;  (8)  refusal  of  the  wife 
to  remove  to  the  state  with  her  husband,  and  absenting  her- 
self for  two  years;  (9)  pregnancy  at  the  time  of  the  marriage, 
by  one  other  than  the  husband  without  his  knowledge;  (10) 
habitual  drunkenness  contracted  after  the  marriage. 

Procedure:  The  plaintiff  must  have  been  domiciled  in  the 
state  for  the  period  of  two  years  before  commencing  the  action. 
The  trial  may  be  had  before  the  court  of  chancery  after  the 
expiration  of  three  months  from  the  date  of  service  on  the 
defendant.  The  guilty  party  cannot  marry  a  paramour.45 

§268.    Texas. 

Causes:  (1)  Excesses,  cruel  treatment  or  outrages,  render- 
ing further  living  together  intolerable;  (2)  where  the  wife 
is  taken  in  adultery;  (3)  desertion  for  three  years  with  intent 
to  abandon;  (4)  abandonment  of  the  wife  by  the  husband  and 
living  in  adultery  with  another  woman;  (5)  conviction  of 
felony  after  the  marriage,  and  confinement  in  the  penitentiary, 
provided  no  divorce  shall  be  granted  on  this  ground  until 
twelve  months  after  final  conviction,  and  not  if  one  party  was 
convicted  on  the  evidence  of  the  other. 

Procedure:     The  plaintiff  must  be  domiciled  in  the  state 

44.     Compiled    Laws    of    South  45.     Session  Laws  of  Tennessee, 

Dakota,   1911;    Pugh  v.    Pugh,    25  1911;  Willis  vs.  Willis,  104  Tenn. 

S.  D.  7,  124  N.  W.  959,  32   L.  R.  382,    58    S.   W.    301;     Herscall    v. 

A.   (N.  S.)  954;  Reeves  v.  Reeves,  Hafford,  107   Tenn.  355,  65  S.  W. 

24   S.   D.   435,   123   N.   W.   869,   25  423,    89.   Am.    St.    R.    952;    Carter 

L.  R.  A.    (N.   S.)    574;    Montague  v.    Carter,    113    Tenn.    509,    82    S. 

v.   Montague,   25    S.    D.     471,    127  W.   309;    Newman   v.   Kimbro,    59 

N.    W.    639,   30   L.   R.   A.    (N.    S.)  S.  W.  1061;  Sparks  v.  Sparks,  114 

745.  Tenn.  666,  88  S.  W.  173. 

188 


VERMONT 

one  year,  and  \\\  the  county  where  the  suit  is  instituted  six 
months,  before  the  art  ion  can  be  commenced.  The  case  mu>i 
he  tried  at  a  regular  term  of  the  court  before  a  jury.  Trial 
may  he  had  after  the  expiration  of  six  mouths  from  the  date 
of  service  on  the  defendant.48 

§269.    Utah. 

Causes:  (1)'  Impotency  of  the  defendant  at  the  time  of  the 
marriage;  i'2)  adultery  committed  by  the  defendant  suhse 
qnent  to  the  marriage;  (3)  wilful  desertion  for  more  than  one 
year;  (4)  wilful  neglect  on  the  part  of  the  husband  to  pro- 
vide the  necessaries  of  life  for  the  wife  for  more  than  one 
year;  (5)  habitual  drunkenness  for  more  than  one  year;  (6) 
cruel  treatment  causing  great  bodily  injury  or  great  mental 
distress. 

Procedure:  The  action  may  be  commenced  after  the  plain- 
tiff has  been  domiciled  in  the  state  for  the  period  of  one  year. 
The  trial  may  be  had  after  the  expiration  of  two  months 
from  the  time  of  service  on  the  defendant.  The  prosecuting 
attorney  must  defend  for  the  state.  The  first  decree  is  inter- 
locutory, to  be  made  final  in  six  months.  The  parties  are 
prohibited  from  marrying  again  for  six  months  after  the 
final  decree,  or,  if  an  appeal  is  taken,  until  the  decision  of 
the  Appeal.47 

§270.     Vermont. 

Causes:  (1)  Adultery;  (2)  when  either  party  is  sentenced 
to  continement  at  hard  labor  in  the  state  prison  for  life,  or 
for  three  or  more  years,  and  is  actually  confined  therein  at 
the  time  of  s»it;  (3)  for  intolerable  severity  in  either  party: 
(4)  for  wilful  desertion  for  three  consecutive  years,  or  when 
either  party  is  absent  and  unheard  of  for  seven  years: 
\\here  the  husband,  having  the  ability,  grossly,  wantonly  and 
cruelly  neglects  to  provide  suitable  maintenance  for  the  wife. 

PrtK-raurc:    Unless  the  cause  alleged  for  divorce  was  com- 

46.     Civil    Statutes     of     Texas.  Tex.  Civil  Aop    630.  79  S.  W.  74. 

1912;   Session  Laws.  Texas,  1913;  47.     Compiled     Laws    of    Utah. 

Dickinson    v.    Dickinson,     138     S.  1907;      Session      L;i\vs     of     Utah, 

W.  205;   McMurray  v.   McMurray,  1909;    State   v.    Morse,    31    Utah, 

67  Tex.  666,   4  S.  W.    357;     Hay-  213,  87  Pac.   705.   7   L.   R.   A.    (N. 

mond  v.  Haymond.  74  Tex.  419,  12  S.)     1127:     In    Re    Christensen's 

S.  W.  90;  Young  v.  Young,  127  S.  Est..    17  Utah,   412.   53  Pac.    1002. 

W.    898;    Michael    v.    Michael,    34  79  Am.  St.  R.  794.  41  L.  R.  A.  504. 

189 


§271  CAUSES  AUTHORIZING  DIVORCE 

init'ted  in  the  state,  the  action  cannot  be  brought  until  the 
plaintiff  has  been  domiciled  in  the  state  for  the  term  of  two 
years.  If  either  party  was  living  in  the  state  when  the  offense 
was  committed,  only  one  year's  domicile  is  required.  The 
x  trial  may  be  had  after  the  expiration  of  four  months  from 
the  time  of  service  on  the  defendant.  The  guilty  party  can- 
not marry  again  for  three  years.48 

§271.    Virginia. 

Causes:  (I/)  Adultery;  (2)  impotency  existing  at  the  time 
of  the  marriage;  (3)  sentence  to  the  penitentiary;  (4)  con- 
viction of  infamous  offense  prior  to  the  marriage,  without  the 
knowledge  of  the  other  party;  (5)  where  either  party  is 
charged  with'an  offense  punishable  with  death,  or  with  con- 
finement in  the  penitentiary,  is  a  fugitive  from  justice,  or 
has  been  absent  two  years;  (6)  desertion  for  three  years;  (7) 
pregnancy  of  the  wife  at  the  time  of  the  marriage,  without 
the  knowledge  or  agency  of  the  husband;  (8)  where  the  wife, 
prior  .to  the  marriage,  was  a  prostitute,  unknown  to  the  hus- 
band, provided  the  husband  has  not  cohabited  with  her  after 
knowledge  of  such  prostitution. 

Procedure:  The  plaintiff  must  have  had  a  domicile  in  the 
state  for  one  year  before  commencing  the  action.  The  trial 
may  be  had  before  the  court  after  the  expiration  of  four 
months  from  the  date  of  service  on  the  defendant.  Absolute 
divorce  cannot  be  granted  for  desertion  until  it  has  existed 
in  the  state  three  years.49 

§272.    Washington. 

Causes:  (1)  Marriage  through  force  or  fraud  where  there 
has  been  no  cohabitation;  (2)  adultery  of  either  party;  suit 
must  be  brought  within  one  year  after  discovery;  (3)  im- 
potency; (4)  abandonment  for  one  year;  (5)  cruel  treatment 
or  indignities  producing  physical  injury;  (6)  habitual  drunk- 
enness or  failure  of  the  husband  to  support  the  wife  without 
cause;  (7)  imprisonment  in  the  penitentiary  if  action  is 
brought  '  during  confinement;  (8)  after  incurable  chronic 

48.     Pub.   Statutes  of  Vermont,  49.     Virginia  Code,  1904;  Laws, 

1906;    Blondin  v.   Brooks,  76  Atl.  1908-1910;   Willard  v.  Willard,  98 

184;    Pratt   v.    Pratt,   75   Vt.    432,  Va.   465,  36  S.  E.  518;  Haynor  v. 

56    Atl.    86;    Sargood   v.    Sargood,  Haynor,  70   S.  E.  531. 
77  Vt.  478,  61  Atl.  472. 

190 


\VKST    VIKCI.MA  $-»'•'. 

mania  or  dementia  has  existed   for  ten   successive  years,  the 
court  may.  in  its  discretion,  uraiit  an  absolute  diy)rce. 

Procedure:  The  action  cannot  l»c  commenced  until  the 
plaintiff  has  been  domiciled  in  the  state  for  one  year.  The 
trial  may  be  had  before  the  court  after  the  expiration  of  three 
n ion ilis  from  the  date  of  service  on  the  defendant.  The  prose- 
cuting attorney  must  defend  uncontested  actions  on  behalf  of 
the  state.  The  decree  of  divorce  must  provide  that  neither 
party  can  marry  again  for  six  months  after  it  is  rendered,  or, 
if  an  appeal  is  taken  therefrom,  not  until  the  cause  is  finally 
determined  on  appeal.60 

§273.    West  Virginia. 

Causes:  (1)  Adultery;  (2)  impotency  existing  at  the  time 
of  the  marriage  and  incurable;  (3)  sentence  to  confinement  in 
the  penitentiary;  (4)  conviction  of  infamous  offense  prior  to 
the  marriaue.  \\ithout  the  knowledge  of  the  other  party:  (5) 
desertion  for  three  years;  (6)  pregnancy  of  the  wife  at  the 
time  of  the  marriage,  without  the  husband's  knowledge  or 
agency;  (7)  the  wjfe  having  been  a  notorious  prostitute  prior 
to  the  marriage,  without  the  husband's  knowledge:  (8)  the 
husband  having  been  a  notoriously  licentious  person  before 
the  marriage,  without  the  knowledge  of  the  wife:  but  no 
divorce  can  be  granted  for  conviction  of  infamy,  prostitution. 
or  licentiousness,  or  antenupital  pregnancy,  where  there  has 
been  cohabitation  after  knowledge  of  the  facts. 

Procedure:  The  action  may  be  begun  after  either  party 
has  had  a  domicile  in  the  state  for  the  period  of  one  year. 
The  trial  may  be  had  after  the  expiration  of  four  months 
from  the  time  of  service  on  the  defendant.  Adultery,  prior 
nnchastity.  impotency,  felony,  and  desertion  for  three  years, 
are  the  only  causes  for  absolute  divorce.  Otherwise,  limited 
divorce  must  first  be  obtained  which  may  be  the  basis  of  an 

50.    Washington  Revised  Code;  771,    25   L.   R.   A.    (N.     S.)     387; 

Statutes,  1910;   Bickford  v.  Bick-  State   v.   Wheeler,   43   Wash.   183, 

ford,  107  Pac.  186;  In  re  Hallope-  86   Pac.   394;    Pringle  v.   Pringle, 

ter,     52     Wash.      41,     100     Pac.  104  Pac.  159;  Lee  v.  Lee,  19  Wash. 

159,   132  Am.   St.   R.   945;    Pierce  355,     53    Pac.     349;     Wheeler     v 

v.  Pierce,  109  Pac.  45;  Bucholz  v.  Wheeler,   38   Wash.    491,    80   Pac. 

Bucholz,    115   Pac.    88;     State    v.  762;    Piper  v.     Piper,     46    Wash. 

Supr.  Ct.   104  Pac.   701;    State  v.  671,  91  Pac.  189. 
Lloyd,    55   Wash.     347,    104    Pac. 

191 


§274  CAUSES  AUTHORIZING  DIVORCE 

absolute  divorce  if  the  parties  do  not  become  reconciled  with- 
in two  yearg.51 

§274.     Wisconsin. 

Causes:  (1)  Adultery;  (2)  impotency:  (3)  sentence  sub- 
sequent to  marriage  to  imprisonment  for  three  years  or  more, 
provided  suit  is  brought  during  confinement;  (4)  where  the 
husband  treats  the  wife  in  a  cruel  and  inhuman  manner,  or 
the  wife  so  treats  the  husband,  or  is  a  drunkard;  (5)  habitual 
drunkenness  for  one  year;  (6)  voluntary  living  apart  for  the 
period  of  five  years  next  preceding  the  commencement  of  the 
action. 

Procedure:  In  the  state  of  Wisconsin  an  entirely  new  law 
governing  domicile,  and  procedure  in  cases,  for  divorce  and 
annulment  of  marriage,  was  enacted  by  the  legislature  of 
1909.  Suit  to  annul  a  marriage  may  be  begun  when  the  plain- 
tiff has  been  domiciled  in  the  state  one  year.  In  actions  for 
divorce,  unless  one  of  the  parties  was  domiciled  in  the  state 
when  the  cause  was  committed  and  remained  so  until  the 
commencement  of  the  action,  a  suit  for  a  divorce  cannot  be 
commenced  until  the  plaintiff  has  been  domiciled  in  the  state 
for  two  years. 

The  prosecuting  attorney  must  resist  all  undefended  appli- 
cations. At  the  trial,  which  may  be  had  two  months  after 
service  on  the  defendant,  an  interlocutory  divorce  is  entered, 
and  at  the  end  of  one  year,  if  an  appeal  is  not  pending,  or  the 
interlocutory  judgment  reversed  or  set  aside,  an  absolute  di- 
vorce may  be  granted  upon  proper  application.  Where  the 
marriage  is  annulled,  the  first  decree  is  also  interlocutory,  to 
be  made  absolute  in  the  same  time  and  on  the  same  conditions 

as  in  divorce  cases.52 
/ 

§275.    Wyoming. 

Causes:  (1)  Adultery;  (2)  impotency  at  the  time  of  the 
marriage,  continuing  to  the  time  of  the  action  for  divorce 
is  commenced;  (3)  conviction  of  felony  and  sentence  there- 

51      West      Virginia      Statutes,  762;  Trough  v.  Trough,  59  W.  Va. 

1914-  Hartigan  v.  Hartigan,  65  W.  464,    53    S.    E.    630,    115    Am.    St. 

Va.   471,    64   S.   E.   726;    Reynolds  R.   940,  4   L.  R.  A.    (N.   S.)    1185. 

v.   Reynolds,   69  N.   E.   381;    Max-  52.     Revised    Statutes    of    Wis- 

well    v    Maxwell,  67  W.  Va.    119,  consin,  1913;   Yates  v.  Yates,  147 

71  S.  E.  571,  27  L.  R.  A.    (N.   S.)  N.   W.    (Wis.)    60. 
712;    Bacon   v.    Bacon,    70    S.    E. 

192 


WYOMING  §275 

under  in  any  prison;  (4)  desertion  for  the  period  of  one 
year;  (5)  habitual  drunkenness;  (G)  extreme  cruelty;  (7) 
failure  of  husband,  having  the  ability,  to  provide  for  the  wife 
for  one  year;  (8)  indignities  rendering  conditions  intolerable. 
Procedure:  Unless  the  marriage  was  celebrated  in  the 
state,  and  the  plaintiff  has  resided  therein  from  the  date  of 
the  marriage  to  the  date  of  the  commencement  of  the  suit,  the 
plaintiff  must  have  been  domiciled  in  the  state  for  the  period 
of  one  year.  The  trial  may  be  had  in  about  three  months  from 
the  time  of  service  on  the  defendant.  All  divorce  judgments 
are  interlocutory,  and  do  not  dissolve  the  marriage,  nor  per- 
mit either  party  to  marry  again  until  the  expiration  of  one 
year  from  the  date  of  the  decree.83 

53.     Wyoming     Compiled     Stat-      17  Wyo.  511,  100  Pac.  112,  129  Am. 
utes.  1910;  Duekstad  v.  Duekstad,      St.  R.   1138. 


193 


CHAPTER  XXIII. 

DIVORCE  AND  ANNULMENT  OF  MARRIAGE  IN 
MICHIGAN. 

§276.  Jurisdiction. 

§277.  Marriages  Void  without  Divorce — Legitimacy  of  Issue. 

§278.  Marriages  Procured  by  Force  or  Fraud. 

§279.  Actions  to  Annul  Void  Marriage. 

§280.  Sufficiency  of  Evidence. 

§281.  Actions  to  Affirm  Marriage. 

§282.  Sentence  to  Imprisonment  for  Life.  • 

§276.    Jurisdiction. 

In  the  State  of  'Michigan  the  several  circuit  courts  in 
chancery  have  jurisdiction  to  grant  decrees  of  absolute  di- 
vorce, limited  divorce,  and  decrees  annulling  or  affirming  mar- 
riages, for  causes  specified  in  the  statutes. 

The  statute  declares  certain  marriages,  solemnized  within 
this  state,  to  be  absolutely  void  without  any  decree  of  divorce 
or  other  legal  process.1  The  statute  also  provides  for  actions 
for  the  annulment  of  a  marriage  supposed  to  be  void,  or  the 
validity  of  which  is  doubted,  as  well  as  proceedings  to  affirm 
such  marriages.2  There  is  a  clear  distinction  between  actions 
for  divorce,  and  actions  for  the  annulment  of  marriages. 

An  action  for  divorce  proceeds  upon  the  theory  of  a  valid 
marriage,  which  the  plaintiff  asks  to  have  dissolved,  and  no 
decree  of  divorce  can  be  granted  without  satisfactory  proof 
of  a  valid  marriage. 

An  action  to  annul  a  marriage  proceeds  upon  the  theory 
that  the  supposed  marriage  is  void,  and  that  no  valid  mar- 
riage between  the  parties  ever  existed. 

§277.    Marriages  Void  without  Divorce— Legitimacy  of  Issue. 
All  marriages  which  are  prohibited  by  law  on  account  of 

1      C  L   1915,  (11392) ;  Howell,  and  not  within  the  original  cog- 

2nd    Ed.,  §11453.  nizance   of  the   courts   of   equity. 

2.'   C.  L.  1915,  (11394);  Howell,  Baugh    v.    Baugh,    37    Mich.    «1; 

2nd.     Ed.,     §11455.       Jurisdiction  Haines  v.  Haines,  35  Mich.  145. 
over   divorce   is   purely   statutory 

194 


MARRIAGE  PROCURED  BY  FORCE  OR  FRAUD        §278 

consanguinity  or  affinity  between  the  parties,  or  on  account 
of  either  of  them  having  a  former  husband  or  wife  living  and 
undivorced,  and  all  marriages  soh-iinii/ed  when  either  of  the 
parties  was  insane  or  an  idiot,  if  solemnized  within  this  state, 
are  absolutely  void  without  any  decree  of  divorce  or  other 
legal  process.3  But  the  issue  of  such  marriages,  except  when 
the  marriage  was  contracted  while  either  of  the  parties  there- 
to had  a  former  husband  or  wife  living  and  undivorced.  must 
be  deemed  legitimate. 

But  marriages  solemnized  when  either  of  the  parties  was 
under  the  legal  age  of  consent  are  not  absolutely  void,  al- 
though the  statute  prohibits  such  marriages.  The  statute 
provides  that  if  the  parties  separate  during  such  non-age,  and 
do  not  cohabit  together  afterwards,  such  marriage  shall  be 
deemed  void,  without  any  decree  of  divorce  or  other  leg.il 
process.4 

Such  a  marriage  may  be  annulled  by  the  mutual  consent  of 
both  parties,  or  at  the  election  of  the  party  under  the  age  of 
legal  consent,  but  not  at  the  election  of  the  party  of  competent 
age.5 

When  one  of  the  parties  is  under  the  legal  age  of  consent-. 
the  marriage  is  voidable  only:"  but  will  be  void  if  the  party 
under  age  withdraws  and  refuses  to  cohabit  before  attaining 
the  age  of  consent.7 

\ 

§278.     Marriages  Procured  by  Force  or  Fraud. 

In  <-ase  the  consent  of  one  of  the  parties  is  obtained  by 
force  or  fraud,  and  there  is  no  subsequent  voluntary  cohabi- 
tation of  the  parties,  the  marriage  is  deemed  void  withour 
any  decree  of  divorce  or  other  legal  process.8  "Where  a  youth 
was  frightened  into  a  marriage  on  a  charge  of  bastardy,  the 
marriage  was  annulled  for  duress.9 

Force   or   fraud    which    will    invalidate   a    marriage   must 

3.  C.  L.  1915.  (11392);  Howell,  209.     The  legal  age  of  consent  is 
2nd.   Ed.,   511453;    In   Re  Fitzgib-  fixed    by   statute   at   the    age    of 
bons'  Estate,   162  Mich.   416,  419-  eighteen  years  for  males  and  six- 
421,  127  N.  W.  313.  teen    years    for    females.      C.    L. 

4.  C.  L.  1915,  (11393);  Howell.  1915.    (11362);   Howell.    2nd.    Ed. 
2nd.  Ed.,  511454.  §11423. 

5.  People    v.    Slack,    15    Mich.  8.     C.  L.  1915,  (11393) ;  Howell, 
193.  2nd.  Ed.,  §11454. 

6.  Bonker  v.  People,  37  Mich.  9.     Smith    v.    Smith,    51    Mich. 
7.  607,   17  N.  W.   76. 

7.  People  v.  Bennett,  39  Mich. 

195 


§279  DIVORCE    AND    ANNULMENT 

usually  be  such  as  to  negative  any  consent  to  be  married  at 
all,  without  reference  to  previous  inducements.  The  com- 
moner cases  are  duress,  surprise  or  stratagem  in  procuring 
the  marriage  itself  to  be  carried  out ;  and  the  fraud  or  duress 
must  usually  be  nearly,  if  not  absolutely,  coincident  in  time 
with  the  marriage,  and  must  operate  to  destroy  that  intelli- 
gent consent  which  is  required  for  the  marriage  itself,  rather 
than  the  preliminary  engagement.10 

To  warrant  a  decree  annulling  a  marriage  for  fraud,  there 
must  be  satisfactory  evidence  to  sustain  the  charge,  regardless 
of  the  declarations,  confessions  or  admissions  of  the  parties.11 
The  statute  forbids  decrees  for  divorce,  or  for  annulment 
solely  on  declarations,  confessions  or  admissions  of  the  par- 
ties, but  this  prohibition  does  not  exclude  such  confessions  or 
admissions,  although  the  court  must  require  other  evidence 
of  the  facts  alleged  in  the  bill  to  justify  a  decree.12 

A  marriage  may  be  annulled  for  fraud,  as  where  a  woman 
induces  a  man  to  marry  her  by  representing  herself  to  be 
pregnant  by  him,  knowing  that  her  pregnancy  was  by  an- 
other.13 But  in  such  case  the  man  must  have  been  actually 
deceived  by  the  representation,  must  have  believed  them,  and 
must  move  diligently  when  he  discovers  their  falsity.  Chas- 
tity is  not  an  essential  requisite  to  a  valid  marriage,  and 
antenuptial  incontinence  is  not  always  a  ground  for  divorce 
or  for  a  decree  of  annulment.14 

§279.    Actions  to  Annul  Void  Marriage. 

When  a  marriage  is,  supposed  to  be  void,  or  its  validity  is 
doubtful,  for  any  of  the  causes  mentioned  in  the  statute, 
either  party,  except  in  cases  where  a  contrary  provision  is 
made,  may  file  a  bill  of  complaint  in  the  circuit  court  in 
chancery  in  the  county  where  the  parties  or  one  of  them  re- 
side, for  annulling  the  same,  and  the  same  proceedings  are 
had  as  in  case  of  a  bill  filed  in  the  same  court  for  a  divorce. 
Upon  sufficient  proof  of  the  nullity  of  .the  marriage,  it  will 
be  declared  void  by  a  sentence  or  decree  of  annulment.15 

10     Leavitt  v.  Leavitt,  13  Mich.  13.     Sissung     v.      Sissung,     65 

452  Mich.  168,  31  N.  W.  770. 

11.     Dawson     v.      Dawson,     18  14.     Leavitt  v.  Leavitt,  13  Mich. 

Mich    335  452. 

12.'    C.  'L.  1915,    (11428) ;   How-  15.     C.  L.   1915,    (11394) ;    How- 
ell,   2nd   Ed.,    §11489;    Dawson   v.  ell,  2nd.  Ed.,  §11455. 
DaWson,  18  Mich.  335. 

196 


ACTION     TO    AFFIRM      .MAKKIAOE  §281 

It  will  be  noticed  iluit  the  statute  requires  the  same  pro- 
ceedings  to  be  liail  in  actions  to  annul  a  marriage  as  in  actions 
for  divorce;  hence,  in  an  action  instituted  by  the  husband  to 
procure  the  annulment  of  the  marriage,  the  court  in  which  t In- 
action is  pending  may  require  the  husband  to  pay  money  to 
tin-  \\itV  to  enable  her  to  carry  on  the  suit.18 

§280.     Sufficiency  of  Evidence. 

A  marriage  should  not  be  annulled  unless  the  evidence  is 
so  clear  and  convincing  that  no  other  conclusion  can  be  drawn 
from  it  than  that  the  facts  necessary  to  make  the  marriage 
illegal  actually  exist.  Every  consideration  of  public  policy 
ami  humanity  admonishes  us  that  a  contract  so  essentially 
connected  with  the  peace  and  happiness  of  individuals  ami 
families,  ami  with  the  well-being  of  society,  should  not  be 
annulled  unless  the  proof  of  the  necessary  facts  is  clear  and 
convincing.  The  law  not  only  favors,  but  encourages  mar- 
riage, ami.  when  once  solemnized  according  to  the  forms  of 
law.  they  will  not  be  declared  void  upon  anything  short  of 
clear  and  convincing  testimony.17 

§281.    Actions  to  Affirm  Marriage. 

The  statute  also  provides  that  "when  the  validity  of  any 
marriage  shall  be  denied  by  either  of  the  parties,  the  other 
party  may  tile  a  bill  or  petition  in  the  manner  aforesaid,  for 
affirming  the  marriage:  and  upon  due  proof  of  the  validity 
thereof,  it  shall  be  declared  valid,  by  a  decree  or  sentence  of 
the  court:  and  such  decree,  unless  reversed  on  appeal,  shall 
be  conclusive  upon  all  persons  concerned."18 

A  court  of  equity  will  entertain  an  action  to  affirm  a  com 
mon  law  marriage  under  the  provisions  of  this  section,  but 
the  proofs  must  clearly  show  -an  agreement  between  the  par 
ties  presently  to  take  eacli  other  as  husband  and  wife,  and 
such   agreement  must  "be  followed  by  cohabitation  in  the  re- 

16.  Webb     v.     Wayne     Circuit  139  Mich.    479.   102    N.    W.    989; 
Judge,   144   Mich.   674,  108  N.  W.  Cole  v.  Cole,  5  Sneedi  (Miss)   59; 
358;    Goldsmith    v.    Goldsmith,    6  Powell   v.    Powell,    27   Miss.    783; 
Mich.  285;  Ross  v.  Ross,  47  Mich.  Slais  v.   Slais,    9    Mo.    App.    97; 
185.    10|  N.    W.    193;     Haines    v.  Kern  v.  Kern,  51  N.  J.  Eq.  582. 
Haines,    35    Mich.    138;    Story   v.  18.     C.  L.  1915,   (11395);   How- 
Story,  Walk.  Ch.  421.  ell.  2nd.   Ed..  §11456. 

17.  VanHaaften  v.  VanHaaften, 

197 


§282  DIVORCE    AND    ANNULMENT 

lation  of  husband  and  wife,  or  no  decree  affirming  such  mar- 
riage will  be  granted.19 

§282.    Sentence  to  Imprisonment  for  Life. 

"When  either  party  shall  be  sentenced  to  imprisonment  for 
life  in  any  prison,  jail  or  house  of  correction,  the  marriage 
shall  be  thereby  absolutely  dissolved,  without  any  decree  of 
divorce  or  other  legal  process,  and  no  pardon  granted  to  the 
party  so  sentenced  shall  restore  such  party  to  his  or  her  con- 
jugal rights."20 

19.     Judson     v.      Judson,      147      mer  v.  Lorimer,  124  Mich. ,  631. 
Mich.  518,  11  N.  W.  78;  Hutchins  20.     C.  L.  1915,    (11396);    How- 

v.   Kimmell,    31   Mich.    126;    Lori-       ell,  2nd.  Ed.,   §11457. 


< 'II  APT  Kit  XXIV. 
AIMM  i:K'V  AS  A  CAUSE  FOB  DIVORCE. 

§283.  Adultery. 

§284.  Bill  of  Complaint. 

§285.  Disposition  and  Opportunity. 

§286.  Professional  Calls. 

§287.  Facts  from  which  Adultery  may  be  Inferred. 

§288.  Facts  not  Sufficient  to  Establish  Adultery. 

§289.  Character  of  Witnesses  to  Prove  Adultery — Particeps  Criminis 

— Prostitutes  and   Procurers — Detectives. 

§290.  Prostitutes  and  Procurers — Detectives. 

§283.     Adultery. 

An  absolute  divorce  from  the  bonds  of  matrimony  may  be 
decreed  by  the  circuit  court  in  chancery  of  the  county  where 
the  parties  or  one  of  them  reside,  on  the  application  by  peti- 
tion or  bill  of  the  aggrieved  party,  whenever  adultery  has 
been  committed  by  either  party  to  the  marriage.1 

In  an  action  for  divorce  on  the  ground  of  adultery,  there 
should  be  required  a  strict  adherence  to  settled  practice  and 
to  all  of  the  requirements  of  the  statute.  It  is  easy  to  bring 
such  a  charge,  and  in  many  cases  to  support  it  by  evidence  of 
circumstances  perfectly  innocent  in  themselves  when  fully 
explained,  and  vet  capable  of  presenting  a  suspicious  ap- 
pearance, and  parties  so  often  resort  to  it  with  full  knowl- 
edge of  its  unfounded  nature,  relying  upon  being  able  to  pre- 
sent a  plausible  showing  which  the  accused  party  may  be 
unable  to  disprove  fully,  that  the  court  should  always  require 
;i  strict  adherence  to  the  rules  of  practice,  and  should  deny 
relief  unless  I)M-  guilt  of  the  accused  party  is  clearly  estab- 
lished.2 

§284.    Bill  of  Complaint. 

The  time,  place  ami  circumstances  or  occasion  of  the  act 
charged,  and  the  name  of  the  guilty  participator,  if  known. 

1.  C.  L.  1915.  (11397);  Howell.  2.  Green  v.  Green,  26  Mich. 
2nd.  Ed.,  §11458.  437. 


5284 


ADULTERY    AS    A     CAUSE 


must  be  set  forth  definitely,  and  with  reasonable  particularity 
and  distinctness.3  An  allegation  that  the  defendant  lived  in 
open  and  notorious  adultery,  stating  the  time,  place,  and  with 
whom,  is  sufficient.4 

The  bill  must  be  sworn  to,  and  any  amendments  made  to  it 
must  also  be  sworn  to  in  the  same. manner  as  the  original  bill.5 

Proof  of  facts  which  are  not  alleged  in  the  bill  cannot  be 
made  available.6  The  adultery  charged  therein  must  be  proved 
by  competent  evidence,  and  not  by  scandal  merely,  nor  by 
reputation  alone.  While  reputation  is  not  sufficient,  it  may 
be  received  in  aid  of,  and  as  incident;  to,  substantive  proof.7 
Proof  of  adulterous  acts  not  alleged  cannot  avail  and  in 
fact  ought  not  to  be  allowed  to  be  proved.8 

It  i^jiot  necessary  that  there  shall  be  absolute  direct  evi- 
dence of  the  fact.  The  charge  may  be  proved  by  circumstan- 
tial evidence  the  same  as  any  other  fact.  There  may  be  no 
direct  proof  of  any  single  fact  sufficient  to  afford  a  conclusive 
inference,  but  if  when  all  the  circumstances  are  combined, 
and  the  natural  inferences  and  presumptions  allowed  their 
due  weight,  the  proof  so  presses  and  convinces  that  is  difficult 
to  reject  belief,  it  is  sufficient.9  It  will  be  presumed  that 
licentious  persons,  holding  and  expressing  loose  and  depraved 
notions  in  regard  to  the  marriage  relation,  will  commit  such 
offenses  as  they  have  opportunity  fdr,  when  consorting  to- 
gether.10 

But  where  adultery  is  sought  to  be  made  out  by  proof  of 
freedom  of  manners,  unchastity  should  not  be  inferred  from 
lack  of  refinement,  if  the  conduct  of  the  party  accused  is  not 
such  as  to  offend  the  general  sentiment  among  the  class  of 
people  with  whom  the  parties  habituallv  associate.  The  law 
does  not  require  a  higher  standard  of  behavior  than  that 


3.  Dunn    v.    Dunn,    11     Mich. 
284;     Shoemaker    v.    Shoemaker, 
20  Mich.  222;  Bennett  v.  Bennett, 
24  Mich.  482;  Green  v.  Green,  26 
Mich.  437;  Randall  v.  Randall,  31 
Mich.  194;  Herrick  v.  Herrick,  31 
Mich.  298. 

4.  Marble  v.  Marble,   36   Mich. 
386. 

5.  Green    v.    Green,    26    Mich. 
437;    Briggs    v.    Briggs,    20   Mich. 
40. 

6.  Green    v.    Green,    26    Mich. 
437. 


7.  Soper    v.    Soper,     29     Mich. 
305;    Marble  v.   Marble,   36  Mich. 
386. 

8.  Dunn    v.     Dunn,    11    Mich. 
284;     Shoemaker    v.    Shoemaker, 
20  Mich.  222;  Bennett  v.  Bennett, 
24  Mich.  482;  Randall  v.  Randall, 
31  Mich.  194;  Herrick  v.  Herrick, 
31  Mich.  298. 

9.  Marble  v.  Marble,  36   Mich. 
386. 

10.  McClung    v.    McClung,    40 
Mich.  493. 


200 


DISPOSITION    AND    OPPORTUNITY  §285 

which  virtuous  people  in  the  same  position  accept  for  them- 
selves ;iml  their  associates.11 

A  ]Mirtici'i>x  crhninix  may  lie  a  competent  witness  for  a 
plaintiff  in  an  action  for  divorce  on  the  ground  of  adultery. 
but  the  testimony  of  such  witness  should  be  supported  l»y 
some  corroborating  evidence.12  A  divorce  for  adultery  should 
not  be  granted  on  the  unsupported  evidence  of  one  who  swears 
to  open  and  shameless  conduct  between  himself  and  the  de- 
fendaut,  and  whose  cross-examination  shows  him  to  be  guilty 
of  manifest  falsehood  under  oath  in  material  particulars,  and 
whom  the  witnesses  brought  to  corroborate  him  rather  con- 
tradict than  confirm.13 

It  is  improper  to  call  children  of  the  parties  of  tender  age 
to  testify  to  facts  tending  to  show  want  of  chastity  of  their 
parents,  and  a  divorce  will  not  be  granted  where  the  case  de- 
pends on  such  testimony.  Such  a  course  is  not  only  a  great 
wrong  in  young  children,  as  it  touches  them  in  their  natural 
affections,  but  it  also  tends  to  destroy  their  purity  of  mind 
and  conduct,  and  leads  them  into  depraved  notions.11 

In  an  action  for  divorce  on  the  ground  of  adultery,  the  time 
when  the  plaintiff  first  discovered  or  had  knowledge  of  the 
fact  should  be  shown,  and  also  whether  there  has  been  a  con- 
donation by  voluntary  cohabitation  since.15 

§285.    Disposition  and  Opportunity. 

It  is  always  competent,  in  an  action  for  divorte  on  tin- 
ground  of  adultery,  to  prove  an  adulterous  disposition  on  the 
part  of  the  defendant  and  the  alleged  paramour,  and  where 
such  adulterous  disposition  or  inclination  is  shown,  and  it 
also  appears  that  at  the  time  and  place  alleged  there  was  an 
opportunity  for  them  to  commit  the  offense,  such  facts  a  in- 
sufficient to  establish  adultery.16 

But  an  adulterous  disposition  is  not  necessarily  established 
by  the  existence  of  undue  familiarity  between  the  accuse- 1 
parties,  and  proof .  of  opportunity  alone,  in  the  absence  of 

i 

11.  Bishop  v.  Bishop,  17  Mich.  15.    Emnions  v.  Eramons,  Walk- 
211.                                                             er's  Ch.  532. 

12.  Emmons  v.  Emmons,  Walk-          16.     14     Cyc.     694;     Blake     v. 
er's  Ch.  532.  Blake,    70    111.     618;     Inskeep     v. 

13.  Herrick     v.     Herrick,     31,  Inseepk,  5  Iowa  204;  McClung  v. 
Mich.  298.  McClung,   40  Mich.  493;   Black  >. 

14.  Kneale  v.  Kneale,  28  Mich.  Black,  30  N.  J.  Eq.  228;  Freeman 
344;  Crowner     v.    Crowner,    44  v.  Freeman,  31  Wis.  235. 

Mich.   180,  6  N.  W.  198. 

201 


§28C  ADULTERY    A8    A   CAUSE 

proof  of  adulterous  inclination,  does  not  establish  adultery.17 

§286.    Professional  Calls. 

A  charge  of  adultery  is  not  sustained  against  a  wife  upon 
evidence  that  she  had  placed  herself  in  the  hands  of  an  ir- 
regular physician,  for  treatment  for  some  female  difficulty, 
and  that  on  several  days  a  physical  examination  was  made 
by  him  in  a  room  with  the  door  bolted.18  Nor  will  adultery 
readily  be  inferred  from  familiarity  and  improper  conduct 
with  near  relations;19  nor  is  evidence  of  frequent  private 
interviews  with  a  clergyman  sufficient  to  establish  adultery.20 

§287.    Facts  from  which  Adultery  may  be  Inferred. 

It  is  not  necessary  that  there  should  be  direct  proof  of 
sexual  intercourse  to  establish  the  fact  of  adultery.  The  fact 
may  be  inferred  from  proof  of  such  conduct  as  would  lead  to 
the  conclusion  that  the  offense  had  actually  been  committed. 
Adultery  may  be  established  by  the  fact  that  the  parties  occu- 
pied the  same  room  at  night,21  or  the  same  bed,22  but  the  in- 
criminating circumstances  may  be  explained.23 

Frequent  visits  at  a  house  of  ill-fame,  in  the  absence  of 
explanation  consistent  with  innocence,  is  sufficient  to  estab- 
lish the  fact  of  adultery.24  Adultery  may  also  be  established 
by  proof  of  pregnancy  of  a  wife  under  circumstances  pre- 
cluding the  possibility  of  the  husband  being  the  author  of  her 
pregnancy;  but  the  husbcand  is  presumed  to  be  the  father  of 
the  child  if  he  had  access  to  his  wife  during  the  required 
period.25  Proof  of  a  subsequent  bigamous  marriage  is  not 
sufficient  without  proof  of  cohabitation.26  It  is  priina  facie 
evidence  of  adultery  that  a  husband,  long,  after  marriage,  is 
afflicted  Vith  a  venereal  disease.27 

17.  Osborne  v.  Osborne,   44  N.      v.    Shufield,    86   Md.    519,   39   Atl. 
J.   Eq.    257,   9  Atl.   698;    Blake  v.       416. 

.Blake,  70  111.  618;  Burk  v.  Burk,  23.     Cave  v.  Cave,  39  N.  J.  Eq. 

Kan.   307.                                                 k  148. 

18.  Stuart  v.   Stuart,  47  Mich.  24.     Mosser  v.  Mosser,   29   Ala. 
566,  11  N.  W.  388.  313;    Peavey  v.   Peavey,  76  Iowa, 

19.  Peavey  v.  Peavey,  76  Iowa  443,  41  N.  W.  67. 

443,  41  N.  W.  67.  25.     Cross  v.  Cross,  3  Paige  (N. 

20.  Freeman     v.    Freeman,    31      Y.)   139,  23  Am.  Dec.  778. 

Wis.  235.  26.     Clapp   v.    Clapp,    97    Mass. 

21.  Names  v.  Names,  67  Iowa      531. 

383,  25  N.  W.  671.  27.     Johnson     v.     Johnson,     18 

22.  Fischer     v.     Fischer,     131      Wend.    (N.  Y.)    637. 
Mich.  441,  91  N.  W.  633;  Shufield 

202 


«  IIAIi.VCTKK   OF    WITNESSES  §289 

§288.    Facts  not  Sufficient  to  Establish  Adultery. 

A  man  will  iiot  be  presumed  to  have  committed  adultery 
while  his  wife  and  child  were  in  the  same  bed  with  him.28 
Adultery  will  not  be  presumed  from  the  fact  of  a  female  ser- 
vant remaining  in  a  room  with  the  defendant  at  night,  where 
the  evidence  satisfactorily  shows  that  she  was  the  only  ser- 
vant about  the  house,  and  that  her  services  were  required  for 
the  purpose  of  adjusting  poultices  on  an  eruption  for  which 
ho  was  undergoing  treatment.29 

A  visit  to  a  house  of  ill  fame  may  be  explained  by  evi- 
dence showing  that  it  was  made  through  ignorance  or  mis- 
take as  to  the  character  of  the  house,  or  because  of  the  fraudu- 
lent inducement  of  the  plaintiff  or  his  agents.80  The  inference 
of  guilt  is  stronger  where  a  married  woman  enters  a  house  of 
ill  fame,  with  knowledge  of  its  character,  with  a  man  not  her 
husband.31  But  the  fact  that  the  defendant  and  her  house 
are  of  ill  repute  is  not  of  itself  sufficient  to  entitle  the  plain- 
tiff to  a  divorce  on  the  ground  of  adultery.32 

§289.     Character   of  Witnesses   to   Prove    Adultery — Particeps 
Criminis. — Prostitutes  and  Procurers — Detectives. 

In  an  action  for  divorce  on  the  ground  of  adultery,  the 
alleged  paramour  of  the  defendant  is  a  competent  witness  to 
prove  the  fact  of  adultery,33  but  such  testimony  is  liable  to 
grave  suspicion,  and  should  be  acted  upon  with  extreme  cau- 
tion.84 Ordinarily,  unless  such  testimony  is  corroborated,  it 
is  not  sufficient  to  authorize  a  decree  of  divorce.85  It  has 
been  held,  however,  that  the  requirement  as  to  corroborntion 

28.  Rickard  v.  Rickard,  9  Ore.  ing  that  if  no  other  evidence  is 
168.  obtainable  it  should  be  consider- 

29.  Peavey  v.  Peavey,  76  Iowa  ed   at  its  true  worth,   in  connec- 
443,  41  N.  W.  67.  tion    with    all   the   other   circum- 

30.  Cave  v.  Cave,  39  N.  J.  Eq.  stances. 

148;      Latham     v.      Latham,     30  34.     Whale    v.    Whale,    71    111. 

Gratt.   (Va.)   307.  510;   Lewis  v.  Lewis,  9  Ind.  105; 

31.  Stackhouse  v.    Stackhouse,  Herrick  v.  Herrick,  31  Mich.  298. 
36   Atl.    (N.  J.)    884;    Matchin   v.  35.     Payne  v.   Payne,    42    Ark. 
Matchin,  6   Pa.   St.   332,    47    Am.  235;  Evans  v.  Evans,  93  Ky.  510, 
Dec.  466.  20  S.  W.  605;  Herrick  v.  Herrick, 

32.  Miller   v.   Miller,   20   N.   J.  31   Mich.   298;    Bishop  v.   Bishop, 
Eq.  216.  17    Mich.    211;    Emmons    v.    Em- 

33.  Moulton     v.     Moalton,    13  mons.  Walker's  Ch.  532;   Hedden 
Me.   110;   Mayer   v.   Mayer,  21  N.  v.  Hedden,  21  N.  J.  Eq.  61;  Cline 
J.   Eq.  246;   Moller  v.  Moller,  115  v.  Cline,   16  Pac.   282;   Simons  v. 
N.  Y.  466,  22  N.  E.  169;  all  hold-  Simons,  13  Tex.  468. 

203 


§290  ADULTERY    AS    A  '  CAUSE 

is  rather  a  rule  of  precaution  on  the  part  of  the  court  than  an 
arbitrary  rule  of  law.  It  appears  to  be  founded  mainly  upon 
the  inability  of  the  party  charged  with  adultery  to  contra- 
dict the  testimony  of  the  alleged  paramour,  because  of  the 
common  law  incompetency  of  husband  and  wife  to  testify  in 
actions  for  divorce.  Where  by  statute  either  spouse  may  be  a 
witness  against  the  other  in  divorce  cases,  the  force  of  the 
reason  requiring  corroboration  is  materially  weakened,  and 
the  sufficiency  of  the  alleged  paramour's  testimony  must  de- 
pend mainly  upon  the  degree  of  credibility  the  judge  or  jury 
trying  the  case  see  fit  to  give  it.36  The  rule  requiring  cor- 
roboration does  not  apply  where  he  denies  the  alleged  crimi- 
nal act.37  The  facts  and  circumstances  relied  on  to  corrobo- 
rate him,  where  he  testifies  on  behalf  of  the  plaintiff,  must  be 
material,  and  such  as  have  a  tendency  to  prove  that  the 
adultery  was  in  fact  committed.38 

§290.     Prostitutes  and  Procurers — Detectives. 

Prostitutes  and  persons  who  procure  adultery  to  be  com- 
mitted are  competent  witnesses  to  the  fact  of  adultery,  but 
their  testimony  should  be  received  with  great  caution,  and 
should  be  fully  corroborated.39 

Detectives  or  other  persons  employed  for  hire,  to  watch  and 
detect  a  husband  or  wife  suspected  of  adultery,  are  compe- 
tent witnesses.  Their  testimony  should  not  be  absolutely  re- 
jected because  of  the  fact  of  their  employment  for  that  pur- 
pose, but  the  court  should  scrutinize  it  carefully  and  receive 
it  with  great  caution.  Ordinarily  such  testimony  should  be 
corroborated,  either  by  the  facts  and  circumstances  in  evi- 
dence, or  by  the  direct  testimony  of  other  witnesses,  or  by 
both.40  The  reason  for  the  rule  seems  to  be  that  when  a  man 

36.  Steffens     v.      Steffens,     16  235,  38  N.  E.  288;   Moller  v.  Mol- 
Daly,   (N.  Y.)  366,  11  N.  Y.  Supp.  ler,  115  N.  Y.  466,  22  N.  E.  169. 
424.  40.     Dennis  v.  Dennis,  68  Conn. 

37.  Pollock    v.    Pollock,    71    N.  186,    36    Atl.    34,    57    Am.    St.    R. 
Y.  137;   Crary  v.  Crary,  18  N.  Y.  95,    34   L.   R.   A.    449;     Blake   .v. 
Supp.  753.  Blake,    70    111.    618;    Van   Voorhis 

38.  Groger  v.   Groger    (N.  J.),  v.   Van   Voorhis,   94   Mich.   60,   53 
45  Atl.  349.  N.   W.    964;    Pullen   v.   Pullen,    46 

39.  Paul  v.  Paul,  37  N.  J.  Eq.  N.  J.  Eq.  318,  20  Atl.   393;   Hurt- 
23;  Waggoner  v.  Waggoner  (Md.),  zig  v.  Hurtzig,  44  N.  J.   Eq.   329, 
10  Atl.  221;  Clare  v.  Clare,  19  N.  15  Atl.  537;    Cave  v.  Cave,  39  N. 
J.    Eq.    37;    Winston   v.   Winston,  J.  Eq.  148;  Cline  v.  Cline  (Of eg.), 
165  N.  Y.  553,  59  N.  E.  273;   Me-  16  Pac.  282;    Engelman  v.  Engle- 
Carthy    v.    McCarthy,    143    N.    Y.  man,    97   Va.    487,    34    S.     E.     50; 

204 


TiTi TI:S   AMI   n:ort  I;I:K>  §^J>0 

sets  himself  up  as  a  hired  <liscoverer  of  supposed  delinquin- 
cies,  and  the  amount  of  his  pay  depends  upon  the  extent  of 
his  employment,  and  the  extent  of  his  employment  deprml* 
upon  the  discoveries  he  is  able  to  make,  he  then  becomes  a 
most  dangerous  instrument.  The  temptation  is  before  him 
to  advance  his  own  interests  ivgnnllcss  of  those  just  and  hu- 
mane principles  which  should  actuate  human  conduct.41 

The  right  to  a  divorce  for  adultery  will  be  barred  if  the 
plaintiff  consents  to  the  employment  of  a  person  to  allure 
the  defendant  into  the  commission  of  the  offense  for  which 
the  action  is  brought.  In  other  words,  a  plaintiff  cannot 
obtain  redress  in  a  court  of  equity  for  an  act  of  adultery 
brought  about  by  himself  or  his  own  agent.42 

Throckmorton    v.    Throckmorton,  42.    Dennis  v.  Dennis,  68  Conn. 

86  Va.  768,  11  S.  E.  289.  186,  34  L.  R.  A.  449;  Williamson 

41.     Blake    v.    Blake,     70     111.  v.    Williamson,   L.    R.    Prob.  .'Div. 

618,  622.  76. 


206 


CHAPTER   XXV. 

PHYSICAL  INCOMPETENCY  AS  A  CAUSE  FOR 
DIVORCE. 

§291.  Physical  Incompetency. 

§292.  Impotency. 

§293.  Impotency  Caused  by  Self  Abuse. 

§294.  Burden  of  Proof. 

§295.  Refusing  Means  of  Cure. 

§296.  Marriage  Voidable,  Not  Void. 

§291.    Physical  Incompetency. 

The  Michigan  statute  provides  that  decrees  of  absolute 
divorce  may  be  granted  "when  one  of  the  parties  was  physi- 
cally incompetent  at  the  time  of  the  marriage."1  Antenuptial 
impotency  is  not  a  ground  for  divorce  unless  made  so  by 
statute.2 

Many  of  the  states  have  enacted  laws  similar  to  the  Michi- 
gan statute  authorizing  divorce  on  the  ground  of  physical 
incompetency  or  impotency  existing  at  the  time  of  the  mar- 
riage. Statutes  authorizing  divorce  on  the  ground  of  physi- 
cal incapacity  are  generally  construed  to  include  impotency 
as  well  as  physical  deformity.  The  terms  "physical  incompe- 
tency" and  "physical  incapacity,"  frequently  met  with  in  di- 
vorce proceedings,  mean  a  want  of  physical  power  to  con- 
summate the  marriage.  The  act  of  gratifying  sexual  desire 
is  the  consummation  of  marriage,  inability  to  accomplish 
which,  when  it  proceeds  from  incurable  physical  imperfection 
or  malformation,  is  precisely  what  the  statute  means  and  ox- 
j.rcsses  by  the  terms  of  "physically  incapacitated"  and  "physi- 
cal incompetency t"  "Barrenness,"  however,  is  in  no  sense  the 
synonym  of  "impotency."3 

§292.    Impotency. 

Impotency  as  a  ground  for  divorce  must  have  existed  at 

1  C.  L.  (1915,  .(11397);  How-  Payne,  46  Min.  467,  49  N.  W.  230, 

ell.  2nd.  Ed.,  §11458.  24  Am.  St.  R.  240. 

2.  Burtis  v.  Burtis,  14  Am.  3.  Anonymous,  89  Ala.  291,  7 

Dec.  563;  Griffith  v.  Griffith,  162  So.  100,  18  Am.  St.  R.  116,  7  L. 

111.  368,  44  N.  E.  820;  Payne  v.  R.  A.  425. 

206 


I 
i.  MI;.\.\S  m   ri  i;i:  5;  !'!»."• 

the  time  of  the  marriage  and  must  have  been  unknown  to  the 
other  party  to  the  marriage  contract.  It  must  be  incurable, 
and  amount  to  an  incapacity  which  admits  neither- copulation 
or  procreation ;  the  copulation  contemplated  being  complete 
and  natural,  not  partial,  imperfect  or  unnatural.* 

§293.    Impotency  Caused  by  Self  Abuse. 

In  some  of  the  states  a  wife  may  be  entitled  to  a  divorce 
for  impotency  of  the  husband,  where,  through  long  continues 
indulgence  in  self  abuse,  he  has  become  so  perverted  in  mind 
and  body  as  to  be  deprived  of  the  desire  and  ability  to  per 
form  the  act  of  coition,  and  so  depraved  that  he  cannot  or  will 
not  exercise  moral  restraint  over  himself.5 

§294.    Burden  of  Proof. 

The  burden  of  proof  is  on  the  complaining  party  to  estab- 
lish both  the  incurable  nature  of  the  impotency  or  physical 
incapacity,  and  its  existence  at  the  time  of  the  marriage.'5 
But  when  the  impotency  is  natural  it  will  be  presumed  to 
have  existed  at  the  time  of  the  marriage,  although  when  it 
is  brought  into  existence  by  physical,  accidental  causes,  the 
contrary  presumption  seems  to  prevail.7 

If,  therefore,  capacity  is  probable,  or  if  though  incapacity 
once  existed  it  has  been  removed,  or  if  it  is  capable  of  bein- 
removed  and  full  capacity  restored,  no  decree  of  divorce  tor 
such  incapacity  or  impotency  should  be  granted.8 

§295.    Refusing  Means  of  Cure. 

It  has  been  held  that  if  the  impediment  is  of  such  nature 
that  it  can  be  removed  by  a  surgical  operation,  without 
serious  danger,  it  is  not  grounds  for  a  decree,  although  the 
party  refuses  to  submit  to  such  operation.  The  reason  for 
this  rule  seems  to  be  that  otherwise  one  might  be  impotent  or 
capable  at  his  own  election,  and  the  marriage  would  be  in 

4.  Griffith    v.   Griffith,   162    111.      368,  44  N.  E.  320. 

368,  44  N.  E.  820;  J.  G.  v.  H.  G.  6.     Newell   v.    Newell.   9   Paige, 

33  Md.  401,  3  Am.  R.  183;  Payne  25;    Devanbaugh    v.    Devanbaugh, 

v.  Payne,  46  Minn.  467,  49  N.  W.  5  Paige  554. 

230,   24  Am.   St.   R.    240.     Lorenz  7.     1   Bishop   on   Marriage   and 

v.  Lorenz,  93  111.  367;   Berdolt  v.  Divorce,   6th    Ed..    §322;    Tierney 

Berdolt,   56    Neb.    792,    77   N.    W.  v.  Tierney,  169  Mich.  600,  135  N. 

399;    Bascomb   v.   Bascomb  25  N.  W.  654. 

H.  267.  8.     Wilde  v.  Wilde,  2   Lee  678, 

5.  Griffeth  v.  Griffeth,  162  111.  580,   586;    1    Fras.    Dom.   Rel.   55. 

207 


§296  PHYSICAL  INCOMPETENCY 

valid  or  good  as  he  might  will.9  It  has  been  said  upon  good 
authority,  and  what  appears  -to  be  sound  reasoning,  "that 
this  doctrine  cannot  be  carried  far,  because  no  one  can  be 
required  to  run  the  hazard  of  life,  or  to  submit  to  means  of 
cure  which  in  good  faith  he  fears,  however  honestly  or  in- 
telligently prescribed."10 

§296.    Marriage  Voidable,  Not  Void. 

Those  impediments  to  the  consummation  of  the  marriage, 
designated  "physical  incompetency,"  "physical  incapacity," 
and  "impotency,"  do  not  render  the  marriage  void.  Until  de- 
cree is  passed,  during  the  life-time  of  both  parties,  the  mar- 
riage is  good  for  all  purposes;  but  the  decree  of  annulment 
makes  it  void  from  the  beginning.11 

Statutes  which  mention  impotency,  physical  incapacity  and 
physical  incompetency  as  ground  for  divorce  are  generally 
silent  as  to  whether  the  decree  operates  to  annul  the  mar- 
riage from  the  beginning  or  from  the  date  of  its  rendition. 
Mr.  Bishop  says  that  "it  is  plain  that  the  principles  of  law 
applying  to  the  case  leaves  it  here  as  in  England.  The  mar- 
riage was  voidable  only;  the  decree  renders  it  void  from  the 
beginning."12 

9.  Devenbaugh  v.  Devanbaugh,      6th  Ed.,  P.  295. 

6  Paige  175;   Fra^.  Dom.  Rel.  55.  12.     1  Bishop  on  Mar.  and  Div., 

10.  1  Bishop  on  Mar.    and    D.  P.    295;    Smith    v.     Morehead,     6 
P.  287,  §332.  Jones  Eq.   360;    Bascomb  v.   Bas- 
il.    1  Bishop  on  Mar.  and  Div.,  comb,  5  Foster   (N.  H.)   267,  273. 


208 


CHAPTER  XXVI. 

IMI'KISON.MKNT  AS  A  CAUSE  FOR  DIVORCE. 

. 

§297.  Imprisonment  for  Three  Years  or  More. 

§298.  Effect  of  Pardon. 

§299.  Conviction  of  Crime. 

§300.  Conviction  in  Another  State. 

§301.  Effect  of  Indeterminate  Sentence. 

§302.  In  case  of  Appeal. 

§297.    Imprisonment  for  Three  Years  or  More. 

The  Michigan  statute  also  provides  that  a  divorce  from  the 
bonds  of  matrimony  may  be  decreed  "when  one  of  the  parties 
has  been  sentenced  to  imprisonment  in  any  prison,  jail  or 
house  of  correction,  for  three  years  or  more;  and  no  pardon 
granted  to  the  party  so  sentenced,  after  a  divorce  for  that 
cause,  shall  restore  such  party  to  his  or  her  conjugal  rights."1 

§298.     Effect  of  Pardon. 

It  is  only  when  a  decree  of  divorce  has  been  granted  for 
that  cause,  before  a  pardon,  that  the  parties  are  precluded 
from  being  restored  to  their  conjugal  rights.  If  a  pardon  has 
been  granted  before  any  application  for  divorce  is  made,  the 
conjugal  rights  of  the  parties  would  seem  to  remain  the  saun- 
as before;  and  if  after  the  pardon  the  parties  resume  the 
marriage  relation,  the  cause  for  which  a  divorce  might  have 
been  granlnl  is  condoned  or  at  least  no  longer  exists. 

§299.     Conviction  of  Crime. 

By  statute  in  some  of  the  states,  conviction  of  felony  or  in- 
famous crime  is  made  a  cause  for  absolute  divorce. 

The  statute  of  Michigan,  however,  does  not  recognize  con- 
viction, or  any  term  of  imprisonment  for  less  than  three  years, 
a  ground  for  divorce,  either  absolute  or  limited,  and,  except  as 
declared  by  statute,  no  divorce  can  be  had  for  any  such  cause. 

1.    C.  L:  (8621);   Howell,  2nd.      Walker's   Ch.   309. 
Ed.,  §11458;   Johnson  v.  Johnson, 

•  209 


§300  IMPRISONMENT    AS    A    CAUSE 

It  is  only  for  those  causes  which  the  statute  declares  to  be 
ground  for  divorce  that  a  decree  or  judgment  of  divorce  can 
be  granted.2  Consequently,  in  this  state,  no  matter  how  in- 
famous may  be  the  crime  of  which  one  of  the  parties  to  a 
marriage  may  be  convicted,  and  however  great  may  be  the 
penalty  which  the  court  may  in  its  discretion  impose,  the 
other  party  cannot  be  relieved  from  the  marriage  obligations 
unless  such  conviction  results  in  a  sentence  of  imprisonment 
in  some  prison,  jail  or  house  of  correction  for  the  period  of 
three  years  or  more. 


Conviction  in  Another  State. 

In  those  states  where  the  statute  declares  conviction  of 
felony  or  other  infamous  crime  to  be  a  ground  of  divorce,  un- 
less otherwise  expressed,  a  conviction  without  the  state  is  not 
a  cause  for  divorce.3  A  conviction  in  the  Federal  court  for 
the  district  of  Massachusetts,  and  imprisonment  in  the  state 
prison  in  that  state  under  sentence  of  that  conviction,  do  not 
constitute  a  cause  of  divorce  in  New  Hampshire.4 

§301.    Effect  of  Indeterminate  Sentence. 

We  are  not  aware  of  any  adjudicated  case  in  Michigan 
where  one  of  the  parties  to  a  divorce  proceeding  has  been 
sentenced  under  the  indeterminate  sentence  statute,  the  maxi- 
mum of  which  is  more  than  three  years  and  the  minimum  less 
than  that  period.  It  would  seem,  however,  that  the  fact  that 
the  term  of  imprisonment,  under  certain  conditions,  may  be 
more  than  three  years,  and  the  uncertainty  that  it  would  be 
less  than  that  period,  ought  to  bring  such  a  case  within  the 
statute  authorizing  a  divorce  when  one  of  the  parties  has 
been  sentenced  to  imprisonment  for  three  years  or  more.  In 
Massachusetts,  under  an  indeterminate  sentence  law  very 
similar  to  the  Michigan  statute,  it  was  held  that  where  a  hus- 
band has  been  sentenced  to  the  state  prison  for  a  maximum 
term  of  six  years  and  a  minimum-term  of  three  years,  under 
a  statute  authorizing  a  prison  commission  to  parole  a  pris- 
oner upon  certain  conditions  after  the  expiration  of  the  mini- 
mum term,  and  to  rearrest  him  if  the  conditions  are  violated 
prior  to  the  expiration  of  the  maximum  term,  the  wife  may 

2.  Sharman    v.     Sharman,     18  v.   Klutts,   5   Sneed    (Term.)    423; 
Tex.   521.  Martin  v.  Martin,  47  N.  H.  53. 

3.  Leonard    v.     Leonard,     151          4.     Martin  v.  Martin,  58  N.  H. 
Mass.    151,  23  N.  E.   732,  21  Am.  52. 

St.  R.  437,  6  L.  R.  A.  632;  Klutts 
210 


CASES   OF  A1TEAL  §302 

obtain  a  divorce  under  the  statute  giving  a  wife  a  right  to  a 
divorce  where  the  husband  is  sentenced  to  imprisonment  for 

live  yrars  or  more. 

§302.     In  Case  of  Appeal. 

For  the  purpose  ofxlivorce,  under  the  statute  making  sen- 
tence of  one  of  the  parties  to  the  marriage  to  imprisonment 
for  a  certain  term  a  ground  for  divorce,  such  sentence  cannot 
be  urged  by  the  other  party  as  a  cause  of  divorce  pending  an 
appeal  from  such  sentence,  before  such  conviction  and  sen- 
tence become  final  by  affirmance  in  the  appellate  court.0 

5.  Oliver   v.   Oliver,  169   Mass.      378,    14   N.   W.    774;     Vinsant    v. 
592,  48  N.  E.  843.  Vinsant,   49   Iowa,   639;     Cone    v. 

6.  Rivers   v.   Rivers,   60   Iowa,      Cone,  58  N.  H.  152. 


211 


CHAPTER  XXVII. 

DESERTION  AS  A  CAUSE  FOR  DIVORCE. 

§303.  Desertion. 

§304.  What  Constitutes  Desertion. 

§305.  Must  Continue  for  Statutory  Period. 

§306.  When   Desertion   Justifiable. 

§307.  Separation  not  always  Desertion. 

§308.  Constructive   Desertion. 

§309.  Separation  by  Mutual  Consent. 

§310.  Where  Both  Dwell  in  Same  House. 

§311'.  Refusal  to  Cohabit. 

§312.  Condonation  of  Desertion. 

§313.  Refusal  to  Follow  Husband. 

§314.  Desertion  not  Excused  by  Continuing  Support. 

§315.  Refusal  of  Sexual  Intercourse. 

§303.    Desertion. 

In  most  of  the  states  desertion  or  abandonment  for  a  period 
varying  from  one  to  five  years  is  generally  prescribed  by 
statute  as  a  ground  for  divorce,  either  absolute  or  limited. 
The  Michigan  statute  provides  that  a  decree  of  absolute 
divorce  may  be  decreed  "when  either  party  shall  desert  the 
other  for  a  period  of  two  years."1 

§304.    What  Constitutes  Desertion. 

Desertion  or  abandonment,  within  the  meaning  of  divorce 
statutes,  is  the  voluntary  separation  of  one  spouse  from  the 
other,  for  the  period  of  time  prescribed  by  the  statute,  with- 
out the  consent,  connivance  or  procurement  of  the  latter,  with- 
out justification,  and  with  intention  of  not  returning.2 

1.  C.  L.  1915,  (11397);  Howell,  49  N.  E.  717;  Orr  v.  Orr,  8  Bush. 
2nd.  Ed.,   §11458.  (Ky.)    156;    Lynch   v.    Lynch,    33 

2.  Rose  v.  Rose,   50  Mich.   92,  Md.    328;     Magrath    v.    Magrath, 
14  N.  W.  711;   Porritt  v.  Porritt,  103    Mass.    577,    4    Am.    R.    579; 
18   Mich.   420;    Cooper  v.   Cooper,  Hall   v.    Hall,   77   Mo.   App.    600; 
17  Mich.  205;  Cox  v.  Cox,  35  Mich.  Davis  v.  Davis,  60  Mo.  App.  545; 
461;    Morrison     v.     Morrison,     20  Kikel    v.    Kikel,    25    Neb.    256,    41 
Cal.   431;    Stein  v.   Stein,  5  Colo.  N.    W.    180;    Davis    v.    Davis,    37 
55;   Bennett  v.  Bennett,  43  Conn.  N.    H.    191;    Sergent    v.    Sergerit, 
313;    Elzas  v.   Elzas,  171  111.  632,  33    N.    J.    Eq.    204;     Williams    v. 

212 


\viii:.\  IH:SI:KTION  JUSTIFIAMU: 
/ 

Some  of  the  states  describe  the  offense  :is  "wilful  ami  ob- 
stinate desertion."  Where  it  is  so  described  it  is  essential 
that  the  party  complained  of  left  voluntarily  ami  against  the 
will  of  the  complainant,  and  that  he  or  she  remained  away 
when  duty  required  a  return.3 

§305.     Must  Continue  for  Statutory  Period. 

The  separation  contemplated  by  the  statute  as 'constituting 
the  offense  of  desertion,  for  which  a  decree  of  absolute  divorce 
may  be  granted,  should  be  continuous  for  the  statutory  period, 
l»y  a  voluntary  breaking  off  of  matrimonial  relations  and  co- 
habitation by  one  party  against  the  will  of  the  other,  under 
circumstances  which  the  law  does  not  consider  sufficient  to 
justify  it.4  The  desertion  must  continue  uninterruptedly  for 
the  period  of  two  full  years,  and  up  to  the  time  of  filing  the 
bill  of  complaint;5  but  it  need  not  have  continued  two  years 
in  this  state.6 

§306.     When  Desertion  Justifiable. 

Desertion  of  one  of  the  parties  by  the  other  may  )•«•  jnsti 
fiable.  Thus,  a  wife  was  held  justified  in  living  apart  from 
her  husband  pending  her  trial  on  a  charge  brought  by  him 
against  her  of  attempt  to  poison  him,  and  also  pending  an 
application  made  by  her  in  good  faith  for  a  divorce  from  him.7 
Where,  after  living  peaceably  for  thirty-five  years,  a  wife  left 
her  home  against  the  will  of  her  husband  to  visit  a  married 
daughter  in  a  distant  state,  and  the  husband  never  wrote  to 
her  or  asked  her  to  return,  or  in  anyway  tried  to  induce  her 
to  do  so,  he  was  refused  a  decree  of  divorce  on  the  ground 
of  desertion,  although  the  separation  had  continued  for  more 
than  the  statutory  period.* 

Where  a  husband  permitted  liis  wife  to  eii^a.ue  in  Inisines* 
in   another  locality,   without  making  any  effort  to  have  her 

Williams,  130  N.  Y.  193,  29  N.  E.  Sweeney,  62  N.  J.  Eq.  357,  50  Ail. 

98,   27   Am.    St.   R.   517,   14  L.   R.  785. 

A.  220;  Ogilvie  v.  Ogilvie,  37  Ore.  4.  Porritt  v.   Porritt,  18  Mich. 

171,  61  Pac.  820;  Besch  v.  Besch,  420. 

27  Tex.  390;   Latham  v.   Latham,  5.  Rudd  v.  Rudd,  33  Mich.  101. 

30    Gratt.    (Va.)    307;    Martin    v.  6.  Colburn  v.  Colburn,  70  Mich. 

Martin,    33   W.   Va.   695,   11    S.   E.  647,  38  N.   W.  607. 

12;    Warner  v.  Warner,  54  Mich.  7.  Porritt  v.  Porritt,  18  Mich. 

494,  20  N.  W.  557.  420. 

3.     Wood  v.  Wood.  63  N.  J.  Eq.  8.  Wright  v.  Wright,  80  Mich. 

688,     53     Atl.      51;      Sweeney     v.  572,  45  N.  W.  365. 

213 


§307  DESERTION    AS    A    CAUSE 

remain  with  him,  or  to  induce  her  to  return,  but  on  the  con- 
trary showed  himself  to  be  rather  glad  that  she  had  gone,  it 
was  held  that  he  was  not  entitled  to  a  decree  of  divorce,  aL 
though  the  separation  continued  uninterruptedly  for  more 
than  two  years.9 

A  wife  who  leaves  her  husband  because  of  his  cruelty  to 
her,  which  she  in  good  faith  believes  makes  further  residence 
with  him  unsafe,  is  not  chargeable  with  desertion,  but  he  is.10 

§307.     Separation  not  always  Desertion. 

The  separation  of  married  persons  differs  from  desertion  of 
one  by  the,  other.  Desertion  is  the  wilful  and  voluntary  aban- 
donment of  one  of  the  parties  by  the  other,  for  the  statutory  pe- 
riod, without  cause  and  against  the  wish  of  the  one  aban- 
doned ;  and  where  separation  and  desertion  occur  at  the  same 
time  it  is  not  always  the  one  who  leaves  the  matrimonial  home 
who  is  the  guilty  party.  If  &  husband's  conduct  toward  his 
wife  is  so  cruel  that  she  cannot  live  and  cohabit  with  him  with 
safety  to  her  health  and  without  danger  of  bodily  injury  or  if 
she  has  good  reason  to  believe  she  cannot,  and  in  good  faith 
does  believe  so,  and  for  such  reason  leaves  him  .and  abandons 
his  home,  she  does-  not  thereby  become  guilty  of  desertion  such 
as  will  authorize  a  decree  of  divorce  against  her.11 

§308.     Constructive  Desertion. 

The  husband  or  wife  who  leaves  the  home  is  not  in  all  cases 
the  deserter.  If  a  legal  cause  for  leaving  the  home  exists,  for 
which  the  party  remaining  is  responsible,  the  latter -is  con- 
structively the  deserter,  as  where  the  husband,  by  cruel  and 
inhuman  treatment  which  makes  it  unsafe  for  her  to  remain, 
compels  his  wife  to  leave  the  home ;  or  where,  being  away  from 
home  with  the  husband's  knowledge  and  consent,  the  wife  is 
refused  admittance  by  the  husband  when  she  returns.12  So, 
the  wife  may  be  guilty  of  such  misconduct  toward  the  hus- 
band as  to  justify  him  in  leaving  her,  and  if  the  necessity  for 

<s 

9.  Beller   v.    Beller,    50    Mich.          12.     Levering    v.    Levering,    16 
49,  14  N.  W.  696.  Md.    213;    Palmer   v.    Palmer,   22 

10.  Warner      v.     Warner,  54      N.    J.   Eq.   88;    Gray  v.   Gray,  15 
Mich.  492,  20  N.  W.  557.                      Ala.    779;    Porrit    v.     Porrit,  18 

11.  Warner      v.      Warner,  54      Mich.  420; /Warner  v.  Warner,  54 
Mich.  494,  20  N.  W.  557.                       Mich.   492,  20  N.  W.  557. 

214 


REFUSAL    TO    COHABIT  §311 

his  doing  so  is  without  his  fault  and  against  his  will  the  wife 
is  the  deserter.13 

But  the  conduct  of  one  party,  to  justify  the  other  in  aban- 
doning the  home,  must  be  of  such  a  nature  as  to  be  inconsist- 
ent with  the  marital  relation,  and  must  be  such  as  to  render 
cohabitation  unsafe.14 

Departure  or  absence  of  one  of  the  parties  from  the  family 
dwelling  place,  caused  by  cruelty  or  by  threats  of  bodily  harm 
frou  which  danger  would  reasonably  be  appreheueded  form  the 
other,  is  not  desertion  by  the  absent  party,  but  is  desertion  by 
the  other  party.1 

§309.     Separation  by  Mutual  Consent. 

A  separation  by  mutuaj  agreement  or  consent  of  the  parties 
cannot  be  construed  as  desertion  by  either,  unless  one  of  the 
parties  in  good  faith  offers  to  resume  cohabitation,  and  such 
offer  is  refused  without  just  cause."18 

§310.    Where  Both  Dwell  in  Same  House. 

The  courts,  under  some  circumstances,  have  granted  decrees 
of  divorce  where  both  parties  continued  to  dwell  under  the 
same  roof,  but  as  a  rule  it  is  held  that  there  must  be  an  actual 
or  constructive  desertion  of  the  home.17 

§311.     Refusal  to  Cohabit. 

Where  a  marriage  is  performed  in  compliance  with  the 
statutory  requirements,  and  its  purpose  is  to  prevent  a  con- 
viction of  bastardy  and  to  legitimize  a  child  of  the  parties. 
and  it  is  agreed  between  the  parties  that  the  niarna»v  shall 
not  be  consummated  by  cohabitation,  and  that  agreement  is  ob- 
served, neither  can  obtain  a  decree  on  the  grounds  of  dcsci 

tion.     The  marriage  in  such  case  is  nevertheless  valid.  au<l 

• 

13.  Gray  v.  Gray,  15  Ala.  779.  Crow,  23  Ala.  583;   Gray  v.  Gray, 

14.  Kinsey   v.   Klnsey,  37  Ala.  15  Ala.  779;   Lynch  v.   Lynch,  33 
393;   Harding  v.  Harding,  22  Md.  Md.  328;   Simpson  v.  Simpson,  31 
337;  Levering  v.  Levering,  16  Md.  Mo.  24;  Goldbeck  v.  Goldbeck,  18 
213;   Fera  v.  Fera.  98  Mass.  155;  N.   J.  Eq.   42;    Ingersoll  v.   Inger- 
Cornish  v.  Cornish,  23  N.  J.  Eq.  soil,    49    Pa.    St.    249;    Power    v. 
208;  Sower's  App.,  89  Pa.  St.  173.  Power,   65  N.  J.   Eq.   93,  55,  Atl. 

15.  Pollock  v.  Pollock,  9  S.  D.  111. 

48,  68  N.  W.  176.  17.     Evans    v.    Evans,    93    Ky. 

16.  Cooper  v.  Cooper,  17  Mich.      510,  20  S.  W.  605;  Anshutz  v.  An- 
205,    97    Am.    Dec.    182;    Crow   v.      shutz,  16"  N.  J.  Eq.  162. 

v 

215 


§312  DESERTION   AS   A   CAUSE 

neither  party  can  obtain  a  divorce  from  the  other  on  the  ground 
of  adultery. 

A  wife  is  guilty  of  desertion  where  she  refuses  to  occupy 
the  husband's  bed,  and  leaves  home  the  morning  after  the  mar- 
riage without  just  cause  and  against  his  will.19 

The  consummation  of  a  marriage  by  coition  is  not  necessary 
to  its  validity.  The  status  of  the  parties  is  fixed  by  law  when  the 
contract  is  entered  into  in  the  manner  prescribed  by  the  stat- 
1  utes  in  relation  to  the  solemnization  of  marriages.20  Hence 
where  a  man  marries  a  woman  to  avoid  a  prosecution  for 
bastardy,  and  immediately  leaves  her,  never  cohabiting  with 
her,  she  may  obtain  a  divorce  for  desertion,  although  the  mar- 
riage was  not  consummated  by  coition.21  And  a  wife  who  re- 
fuses to  remove  to  her  husband's  home,  or  to  cohabit  with  him 
in  her  home,  is  guilty  of  desertion.22 

§312.     Condonation  of  Desertion. 

Desertion,  such  as  will  in  all  cases  be  a  valid  cause  for  di- 
vorce, is  not  easily  denned.  And  it  may  be  said  to  be  equally 
difficult  to  define  what  will  amount  to  an  interruption  or  con- 
donation of  desertion  which  will  preclude  the  granting  of  a 
divorce.23  Where  the  parties  have  consented  to  live  apart, 
either  party  may  revoke  such  consent  at  any  time,  and  if  one 
of  them  does  so,  and  honestly  seeks  in  good  faith, to  renew 
cohabitation  and  the  other  refuses,  such  refusal  constitutes 
desertion.24  A  visit  by  the  hsuband  to  the  wife  during  the  pe- 
riod of  her  desertion,  with  a  view  of  inducing  her  to  return, 
and  an  attempt  to  do  so,  even,  although  ^they  occupy  the  same 
room  and  bed  during  such  visit,  will  not  interrupt  the  period 
of  desertion  necessary  to  entitle  the  husband  to  a  divorce,  nor 
will  it  condone  her  offense  of  desertion  if  she  refuses  to  return. 
But  if  und'er  such  circumstances  the  husband  succeeds  in  in- 
ducing her  I  to  return  and  she  does  return,  to  her  home  and 
matrimonial  duties,  undoubtedly  the  desertion  would  be  re- 
garded as  condoned  and  at  an  end. 

18.  Franklin   v.   Franklin,   154      Wright  (Ohio)   223. 

Mass.   515,  28  N.  E.   618,  26  Am.  22.     Sisemore    v.    Sisemore,    17 

St.  R.  266,  13  L.  R.  A.  843.  Ore.  542,  21  Pac.  820. 

19.  Pilgrim     v.      Pilgrim,      57  23.     Stewart  v.  Stewart,  78  Me. 
Iowa  370,  10  N.  W.  750.  548,  57  Am.   R.  822;   Danforth  v. 

20.  Franklin   v.   Franklin,    154  Danforth,  88  Me.  120,  51  Am.  St. 
Mass.  515,  13  L.  R.  A.  843;  Eaton  R.  380,  31  L.  R.  A.  608. 

v.    Eaton,    122    Mass.    276;    Jack-          24.     Danforth    v.    Danforth,    88 
son  v.  Winnie,  7  Wend.  47.  Me.  120. 

21.  McQuaid        v.        McQuaid, 

216 


-J 
KKl-M'SAI.    <>!••    SK.MAI.    1  NTKK« '< >  I 

§313.     Refusal  to  Follow  Husband, 
i 

The  general  rule  is  that  the  husband  has  the  Legal  right  to 
select  and  tix  the  family  home  and  place  of  domicile,  as  he  is 
considered  the  head  and  support  of  the  family.  If  he  removes 
to  another  state  or  locality,  and  there  provides  a  reasonable 
home,  suitable  to  their  station  in  life,  and  the  wife,  without 
reasonable  cause,  refuses  to  follow  or  go  with  him.  without 
legal  cause,  she  is  guilty  of  such  desertion  as  will  entitle  him 
to  a  divorce,  after  such  refusal  has  continued  for  the  statutory 
period.25 

$314.     Desertion  not  Excused  by  Continuing  Support. 

Where  n  husband  intentionally  and  against  his  wife's  con- 
sent has  abandoned  all  matrimonial  intercourse  and  compan- 
ionship with  her  for  the  statutory  period,  and.  denied  her  the 
protection  of  his  home,  she  is  entitled  to  a  decree  of  divorce, 
even  although  during  such  period  he  has  regularly  contributed 
money,  and  from  time  to  time  necessaries,  toward  supporting 
the  wife  and  their  children.26 

§315.     Refusal  of  Sexual  Intercourse. 

In  some  of  the  states  the  refusal  of  sexual  intercourse  is 
considered  as  constituting  desertion  where  there  is  no  jusi  or 
reasonable  cause  for  such  refusal.27  In  other  states  it  has 
been  held  that  such  refusal  does  not  constitute  such  desertion 
as  will  authorize  a  decree  of  divorce  on  that  ground  alone.28 

26.     Kennedy    v.    Kennedy,    87  st&n's  Appeal,  93  Pa.   St.   133. 

Ill:  250;  Babbitt  v.  Babbitt,  69  111.  27.     Whitfield   v.    Whitfield,    89 

277;    Walker   v.    Leighton,   31   N.  Ga.  471,  15  S.  E.  543. 

H.   Ill;    Hunt  v.  Hunt,  20  N.   J.  28.     Stewart  v.  Stewart,  78  Me. 

Eq.  96;  Hair  v.  Hair,  10  Rich.  Eq.  548>   57   Am>   R.   822;     Cowles    v. 

(S.  C.)   163.  Cowles,  112  Mass.  298;  Southwick 

26.     Magrath    v.    Magrath,    108  v.    Southwick,   97   Mass.     327,    93 

Mass.  577,  4  Am.  R.  579;  Sargent  Am.  Dec.  95;  Schoesson  v.  Schoes- 

v.  Sargent,  36  N.  J.  Eq.  644;  Ral-  son,  83  Wis.  553,  53  N.  W.  856. 


217 


CHAPTER  XXVIII. 

HABITUAL  DRUNKENNESS  AS  A  CAUSE  FOR 
DIVORCE.  ,  A 

§316.  Habitual  Drunkenness. 

§317.  Definition. 

§318.  Constant  and  Continuous  Drunkenness. 

§319.  Use  of  Opiates. 

§320.  Period   of  Indulgence. 

§321.  Antenuptial   Habit. 

§322.  Condonation. 

§316.    Habitual  Drunkenness. 

The  Michigan  statute,  as  well  as  the  statutes  of  many  other 
states,  provides  that  a  divorce  from  the  bonds  of  matrimony 
may  be  decreed  when  the  husband  ojr  wife  shall  have  become 
an  habitual  drunkard.1 

In  many  of  the  states,  the  term  used-  in  the  statute  is 
"habitual  intemperance"  for  a  certain  period;  in  others  the 
term  used  in  the  statute  is  "habitual  drunkenness,"  and  in 
still  others  the  cause  for  divorce  is  expressed  as  "habitual 
drunkenness"  or  "habitual  intemperance"  of  the  husband.2 

• 

§317.    Definition. 

A  precise  definition  of  the  term  habitual  drunkard,  which 
will  cover  all  cases  which  come  before  the  courts,  is  somewhat 
difficult  to  frame.  The  language  of  the  Michigan  statute  is: 
"When  the  husband  or  wife  has  become  an-  habitual  drunk- 
ard." One  who  has  the  drink  habit  so  firmly  fixed  upon  him 
that  he  gets  drunk  as  often  as  he  goes  where  liquor  is  sold,  is 
unquestionably  an  habitual  drunkard  within  the  meaning  of 
the  statute. 

While  habitual  drunkenness  or  intemperance  caused  by  the 
voluntary  and  excessive  use  of  alcoholic  liquors  is  a  ground 
for  divorce  in  nearly  all  the  states,  it  is  generally  held  that  a 
divorce  will  not  be  granted  on  the  ground  of  drunkenness  or 
intemperance  unless  it  is  shown  that  such  drunkenness  or  in- 

1.     C.  L.  1915,  (11397) ;  Howell,          2.     See  Part  3,  Chapter  XXII. 
2nd.  Ed.,  §11458,  Sub.  5. 

218 


I   Si:    nr   ol-lATKS 

temperance  is  habitual.  Il  is  generally  held  Hint  the  per- 
sistent  habit  of  becoming,'  grossly  intoxicated  constitutes  the 
offense  of  habitual  drunkenness  within  the  meaning  of  the 
divorce  laws  of  the  several  states  where  that  offense  is  made 
grgnnd  for  divorce.4 

§318.     Constant  and  Continuous  Drunkenness. 

It  is  not  necessary  to  show  constant  and  continuous  drunk- 
enness to  make  out.  the  offense  within  the  meaning  of  the 
statute.-  Nor  is  occasional  indulgence  in  intoxicating -liquors 
sufficient  to  establish  a  charge  of  habitual  drunkenness  or 
habitual  intemperance.6  It  is  not  necessary  that  the  habit 
shall  render  the  party  at  all  times  incapable  of  attending  to 
business,  but  it  is  sufficient  if  it  disqualifies  him  from  attend- 
in  jr  to  his  business  during  the  principal  portion  of  the  time 
usually  devoted  to  business.7 

§319.     Use  of  Opiates. 

The  intoxication  or  drunkenness  meant  by  the  statute,  un- 
less otherwise  expressed,  is  that  produced  by  the  excessive  use 
of  alcoholic  liquors,  and  not  by  excessive  use  of  opiates."  In 
some  of  the  states,  however,  gross  and  confirmed  drunkenness. 

3.  Magahay     v.     Magahay,    35       Meathe,   83   Mich.   150,   47   N.   W. 
Mich.   210;    Brown  v.    Brown,    38       109;  Ishler  v.  Ishler,  81  Mo.  App. 
Ark.    324;    McGill    v.    McGill,     19       567. 

Fla.    341;    Batchelder     v.     Batch-          6.     Myrick   v.    Myrick,    67     Ga. 

elder,   14   N.   H.    380;    Myrick    v.  771;  Bizer  v.  Bizer,  110  Iowa  248, 

Myrick,  67  Ga.  7*71.  81  N.  W.  465;  Meathe  v.  Meathe. 

4.  McGill    v.    McGill,    14    Fla.  83  Mich.   150,  47  N.  W.   109;    Mc- 
341;    Myrick   v.    Myrick,    67    Ga.  Bee  v.  McBee,  22  Ore.  329,  29  Pac. 
771:    Youngs   v.   Youngs,    13    111.  887,   29   Am.   St.    R.   613,   holding 
230,  22  N.  E    806,  17  Am.  St.  R.  tnat  where  the  defendant  drank 
313,  6  L.  R.  A.   548;   Richards  v.  to  excess  only  when  he  went  to 
Richards,   19   111.   App.   465;    Wai-  town   from    nis   farm,   which   did 
ton  v.  Walton,  34  Kan.  195,  8  Pac.  not   average   more   than   twice  a 
110;  Williams  v.  Goss,  43  La,  Am.  month,    and    he    was    never    dis- 
868,  9  So.  750;  Blaney  v.  Blaney,  qualified  from  doing  his  work,  it 
126    Mass.    205;    Magahay   v.   Ma-  was  not  habitual  gross   drunken- 
gahay..  35   Mich.   210;    Golding  v.  ness. 

Golding,  6   Mo.  App.   602;   McBee  7.     Mahone  v.  Mahono,   19  Cal. 

v.   McBee,   22  Ore.    329,    29    Pac.  626,  81  Am.  Dec.  91. 

887,  29  Am.  St.  613;    Gourley    v.  8      Youngs   v.   Youngs,   130    111. 

Gourley,  16  R.  I.  705,  19  All.  142.  230.  22  N.  E.  806,  17   Am.   St.  R. 

5.  Fuller    v.    Fuller,     108     Ga.  313,   6   L.   R.   A.  548;    Dawson   v. 
256,    33    S.     E.     865;     Meathe     v.  Dawson,  23  Mo.  App.  169. 

219 


§320  HABITUAL  DRUNKENNESS 

caused  by  the  voluntary  and  excessive  use  of  opium  or  other 
drugs,  is  a /ground  for  divorce.9 

§320.     Period  of  Indulgence. 

In  many  of  the  states  the  statute  prescribes  the  period  dur- 
ing which  the  habit  must  continue  in  order  to  make  it  a 
ground  for  divorce.  Where  the  statute  so  provides,  it  must 
be  shown  that  the  habit  has  continued  up  to  the  time  of  filing 
the  bill  of  complaint.10 

§321.    Antenuptial  Habit. 

Where  the  habit  was  contracted  before  the  marriage,  and  ex- 
isted at  the  time  of  the  marriage,  it  is  not  ordinarily  a  ground 
for  divorce.11  And  in  all  cases  where  the  plaintiff  had  knowl- 
edge of  the  obnoxious  habit  prior  to  the  marriage,  and  entered 
into  the  marriage  with  full  knowledge  that  it  still  existed, 
such  knowledge  will  be  a  bar  to  a  suit  for  divorce.12 

§322.     Condonation. 

The  matrimonial  offense  of  habitual  drunkenness  may  be 
condoned  the  same  as  any  other  ground  of  divorce.  What  will 
amount  to  a  condonation,  however,  must  depend  upon  the  par- 
ticular circumstances  of  each  case.  In  general,  condonation 
within  the  meaning  of  divorce  laws  may  be  said  to  be  forgive- 
ness of  an  antecedent  matrimonial  offense,  which  otherwise 
would  be  ground  for  divorce,  on  condition  that  it  shall  not  be 
repeated,  and  that  the  offender  shall  thereafter  treat  the  in- 
jured party  with  conjugal  kindness!13 

Where  the  offense  has  once  -been  condoned  there  can  be  no 
divorce  so  long  as  the  offender  complies  with  the  condition, 
but  a  repetition  of  the  offense,  after  forgiveness,  works  a  re- 
vival of  the  original  ground  for  divorce.14 

The  subject  of  condonation  will  be  further  considered  under 
the  title  of  actions  for  divorce. 

9.  Burt  v.  Burt,  168  Mass.  204,      ~990,    42    S.    E.    374;    Heinzman   v. 
46  N.  E.   622.  Heinzman,  15  Pa.  Co.  Court,  669; 

10.  Reynolds    v.    Reynolds,    44  Tilton   v.    Tilton,    29    S.   W.    290; 
Minn.    132,    46    N.    W.    236;    Burt  Smith  v.  Smith,  53  S.  W.  1000. 
v.  Burt,   168   Mass.  204,   46  N.  E.  13.     Turnbull    v.    Turnbull,    23 
622.  Ark.  615;  Sharp  v.  Sharp,  116  111. 

11.  Lyster  v.  Lyster,  111  Mass.  509,  6  N.  E.  15. 

327;    Porritt  v.   Porritt,   16  Mich.          14.     Odom  v.  Odom,  36  Ga.  285; 
140.  Farnham  v.  Farnham,  37  111.  497. 

12.  Stanley  v.  Stanley,  115  Ga. 

220 


CHAPTER  XXIX. 

T<  UIKIGN  DIVORCES. 

§323.  Divorce  Obtained  in  Another  State. 

§324.  Foreign  Divorce. 

§325.  Jurisdiction — Residence  of  Parties. 

§326.  Jurisdiction    Continued — Conflict   of   Laws. 

§323.     Divorce  Obtained  in  Another  State. 

In  Michigan  the  courts  may  iu  their  discretion  grant  a  di- 
vorce  from  the  bonds  of  matrimony  to  any  party  who  is  a  resi- 
dent of  the  state,  whoso  husband  or  wife  shall  have  obtained 
a  divorce  in  any  other  state.1 

§324.     Foreign  Divorce. 

A  decree  of  divorce  obtained  by  one  party  in  another  state 
against  the  other  party  residing  in  this  state,  furnishes  a 
ground  for  divorce  to  the  latter,  whether  the  decree  in  the 
other  state  is  valid,  void  or  voidable.2 

Where  a  defendant  filed  a  cross  bill  alleging  a  prior  divorce 
from  plaintiff  procured  by  him  in  another  state,  it  was  held 
that  such  foreign  divorce  could  not  be  pleaded  as  a  bar  to  the 
action,  since  such  divorce  itself  constitutes  a  ground  of  divorce 
to  a  plaintiff  residing  in  this  state.8 

§325.    Jurisdiction — Residence  of  Parties. 

The  complainant  must  have  been  domiciled  in  this  state, 
in  good  faith,  for  tin-  siatutory  period  before  commencing;  the 
action,  ami  a  wife  may  acquire  such  a  domicile,  separate  from 
that  of  her  husband. 

It  appears  to  be  the  general  rule,  that  to  give  the  courts  of 
any  state  jurisdiction  over  the  marriage  relation  between  hus- 

1.  C.  L.  1915,  (11397);  Sub.  6;       180. 

Howell,  2nd.  Ed.   §11458.  3.     Van  Inwagen  v.  Van  Inwa- 

2.  Wright  v.  Wright,  24  Mich.       gen, -86  Mich.  333,  49  N.  W.  154. 

221 


§326  FOREIGN   DIVORCES 

r 

band  and  wife,  one  of  the  parties,  at  least,  must  have  a  dom- 
icile within  that  state.  Some  of  the  statutes  and  judicial  de- 
cisions make  further  requirements,  but  no  court  has  held  that 
any  less  could  be  demanded.4 

The  provision  of  the  Federal  constitution  which  requires 
full  faith  and  credit  to  be  given  in  every  state  to  the  records 
and  judicial  proceedings  of  the  other  states  does  not  extend  to 
the  giving  of  validity  to  proceedings  which  are,  in  themselves, 
mere  nullities.  It  is  implied  in  judicial  proceedings  that  the 
court  assuming  to  act  and  to  render  judgment  should  have 
had  competent  authority  to  do  so  in  the  particular  case;  and, 
when  this  authority  is  wanting,  whatever  is  done  is  not 
judicial.5 

And  even  where  the  record,  by  its  recitals,  makes  a  prima 
facie  case  of  jurisdiction,  no  one  in  another  state  or  country  is 
precluded  thereby,  but  he  may  show  what  the  real  fact  was, 
and  thus  disprove  the  authority  for  making  such  a  record.8 

§326.    Jurisdiction  Continued — Conflict  of  Laws. 

Courts  of  chancery  in  Michigan  have  no  jurisdiction  in  di- 
vorce proceedings  beyond  what  has  been  conferred  by  statute. 
Where,  on  granting  to  the  wife  a  divorce  in  another  state, 
children  are  taken  from  the  parental  control  of  the  father,  and 
their  care  and  custody  given  to  the  mother,  she  cannot  main- 
tain an  action  in  this  state,  by  proceedings  supplemental  to 

4.  People  v.   Dawell,   25  Mich.  36;      Shumway     f.     Stillman,     4 
254,  in  which  it  is  also  held  that  Conn.     292,      15    Am.    Dec.    374; 
the    recitals   in    the    record    of   a  Thompson  v.  Emmert,  15  111.  416; 
divorce  case,  that  the  parties  are  Marx  v.  Fore,  51  M6.  69,  11  Am. 
residents  of  the  state  where  the  R.  432;   Reel  v.  Elder,  62  Pa.  St. 
suit  is  instituted,  do  not  preclude  308,   1  Am.   R.   414;    Penny  wit  v. 
the    showing,    in     another    state,  Foote,    27    Ohio    St.    600,    22   Am. 
where  the  divorce  comes  collater-  R.    340;    Oilman    v.    Gilman,    126 
ally  in  question,  that  the  parties  Mass.  26,  30  Am.  R.  646;   Bowler 
never   resided   in   said   first   men-  v.  Hurton,  32  Am.  R.  673;  Eaton 
tioned    state,    and    that    the    suit  v.   Hasty,  6   Neb.  419,  29  Am.  R. 
was  fraudulent  and  collusive.  365;    People  v.   Dawell,   25   Mich. 

5.  Reed  v.  Reed,  52  Mich.  117,  247,  12  Am.  R.  260;  Reed  v.  Reed, 
17  N.  W.  720.  52  Mich.  117,  17  N.  W.  720;  Bear 

6.  Thompson    v.    Whitman,    18  v.  Heasley,  98   Mich.  279,  315,  57 
Wall.   (U.  S.)   457,  21  L.  Ed.  897;  N.  W.  270;  Wright  v.  Wright,  24 
Knowles    v.    Gas    Light     Co.,     19  Mich.   180;   McEwan    v.    Zimmer, 
Wall.    58,    22   L.   Ed.   70;    Bartlett  38  Mich.  765. 

v.  Knight,  1  Mass.  401,  2  Am?  Dec. 

222 


CONFLICT   <>K    LAWS  §326 

i IK-  derive  obtained  in  n  foreign  si;itc.  to  compel  the  father  to 
support  the  children,  for  the  reason  that  the  statute  of  this 

•>i;ile  gives  its  courts  no. such  authority.7 

7.     Judson  v.  Judson,  171  Mich.  Eldred,    62    Neb.    613,    87    N.    W. 

185,    137    N.    W.    103;  'Peltier    v.  340;    Baugh   v.    Baugh,    37    Mich. 

Peltier,   Har.   Ch.    19;    Perkins  v.  61;    Haines    v.    Haines,    35    Mich. 

Perkins,  IS  Mich.  167;  Wright  v.  145. 
Wright,   24    Mich.   180,   Eldred   v. 


223 


CHAPTER  XXX. 

DIVORCE  FROM  BED  AND  BOARD. 

§327.  When  may  be  Decreed. 

§328.  When  Absolute  Divorce  Granted. 

§329.  Purpose  of  the  Statute. 

§330.  Effect  of  the  Amendment. 

§331.  Extreme  Cruelty. 

§332.  Evidence  to  Establish  Extreme  Cruelty. 

§333.  Acts  Constituting  Extreme  Cruelty. 

§334.  Acts  not  Extreme  Cruelty. 

§335.  Condonation   of  Extreme  Cruelty. 

§335a.  Refusal  of  the  Husband  to  Support  the  Wife. 

§327.    When  may  be  Decreed. 

The  statute  of  Michigan  provides  that  "a  divorce  from  bed 
and  board  forever,  or  for  a  limited  time,  mar  be  decreed  for 
the  ground  of  extreme  cruelty,  whether  practiced  by  using 
personal  violence  or  by  any  other  means;  or  for  utter  deser- 
tion by  either  of  the  parties  for  the  term  of  two  years ;  and  a 
like  divorce  may  be  decreed  on  the  complaint  of  the  wife,  when 
the  husband,  being  of  sufficient  ability  to  provide  a  suitable 
maintenance  for  her,  shall  grossly  or  wantonly  and  cruelly 
refuse  or  neglect  to  do  so."1 

It  will  be  noticed  that  this  section  authorizes  divorce  from 
bed  and  board,  or  limited  divorce,  for  three  specified  causes, 
one  of  which,  desertion,  is  made  ground  for  absolute  divorce 
by  the  preceding  section.2 

§328.    When  Absolute  Divorce  Granted. 

The  same  statute  also  provides  that  "a  divorce  from  the^ 
bonds  of  matrimony  may  be  decreed  for  either  of  the  causes 
mentioned  in  the  preceding  section  whenever,  in  the  opinion 
of  the  court,  the  circumstances  of  the  case  shall  be  such  that 
it  will  be  discreet  and  proper  so  to  do;  but  no  divorce  from 
the  bonds  of  matrimony  for  either  of  the  causes  mentioned  in 

1.     C.  L.  1915,  (11398);  Howell,  2.     C.  L.  1915,  (11397);  Sub.  4; 

2nd.  Ed.,  §11459.  Howell.  2nd.  Ed.,  §11458. 

224 


EFFECT    OF    THE   AMENDMENT  §330 

the  preceding  section  shall  be  entered  in  any  case  where  the 
same  is  not  asked  for  by  the  complainant  in  the  bill  of  com- 
plaint tiled  therein  or  by  the  defendant  on  a  cross  bill,  unless 
the  court  hearing  the  evidence  shall  deem  it  for  the  best  inter- 
est of  the  parlies  to  "Taut  a  divorce  from  the  bonds  of  matri- 
mony, and  in  that  event  the  court  may  grant  such  divorce."8 

§329.     Purpose  of  the  Statute. 

This  statute,  authorizing  the  courts  to  grant  a  decree  of 
absolute  divorce  for  any  of  the  causes  mentioned  in  the  pre- 
ceding section  whenever  in  the  opinion  of  the  court  it  will  be 
discreet  and  proper  to  do  so.  provides  for  such  decree,  not  to 
meet  the  desire  of  the  parties,  but  on  grounds  of  public  policy, 
to  prevent  the  mischiefs  arising  from  turning  out  into  the 
world,  in  enforced  celibacy,  persons  who  are  neither  married 
nor  unmarried.4  And  in  such  a  case  it  has  been  ruled  that 
the  court  may  decree  an  absolute  divorce,  although  the  com- 
plainant asks  for  a  decree  of  separation  only.8 

Since  the  decision  announcing  the  foregoing  rules,  the  legis- 
lature has  amended  Section  8622  of  the  Compiled  Laws  of 
1897,  by  adding  thereto  the  following : — "But  no  divorce  from 
the  bonds  of  matrimony  for  either  of  the  causes  mentioned  in 
the  preceding  section  shall  be  entered  in  any  case  where  the 
same  is  not  asked  for  in  the  bill  of  complaint  filed  therein, 
or  by  the  defendant  on  a  cross  bill,  unless  the  court  hearing 
the  evidence  shall  deem  it  for  the  best  interest  of  the  parties 
to  grant  a  divorce  from  the  bonds  of  matrimony,  and  in  that 
event  the  court  may  grant  such  divorce."6 

This  amendment  was  ordered  to  take  immediate  effect,  and 
was  approved  by  the  governor  on  June  28,  1907. 

§330.     Affect  of  the  Amendment. 

This  amendment,  while  it  prohibits  the  courts  from  grant- 
ing decrees  of  absolute  divorce  for  the  causes  mentioned,  un- 
less the  same  is  asked  for  in  the  complainant's  bill  or  by  a 
cross-bill  of  the  defendant,  still  authorizes  such  decree  "where 
the  court  hearing  the  evidence  shall  deem  it  for  the  best  in- 

3.  C.  L.  1916,  (11399);  Howell,  Mich.   674,   71   N.   W.   487,   Moore 
2nd.  Ed.,  §11460.  J.  dissenting. 

4.  Burlage  v.  Burlage.  65  Mich.          6.     P.  A.  1907,  No.  324;  Howell, 
624,  32   N.   W.   866.  2nd.     Ed.,     §11460;     C.     L.     1915, 

5.  Sullivan     v.     Sullivan,     112  (11399). 

225 


§331  DIVORCE    PROM    BED    AND    BOARD 

terest  of  the  parties    to    grant  a  divorce    from    the  bonds  of 
matrimony." 

It  seems  still  to  leave  a  certain  discretion  with  the  court 
relative  to  granting  an  absolute  divorce,  when  not  asked  for 
by  either  party,  but  requires  that  discretion  to  be  exercised 
with  a  view  to  the  best  interests  of  the  parties,  instead  of  on 
considerations  of  public  policy,  regardless  of  the  desires  of  the 
parties  to  the  action.  It  does  not  deprive  either  the  circuit 
court  or  the  Supreme  Court  of  the  discretion  to  grant  an  abso- 
lute divorce  on  the  grounds  mentioned*  even  where  neither  of 
the  parties  ask  for  such  decree,  and  desire  only  a  limited  di- 
vorce. The  form  of  decree  which  should  be  made  in  such  cases 
still  rests  in  the  sound  discretion  of  the  circuit  court  in  the 
first  instance,  and,  upon  appeal,  in  the  sound  discretion  of  the 
Supreme  Court.7  And  we  think  it  may  safely  be  said  that  it  is 
still  the  settled  policy  of  the  courts  of  this  state  to  grant  de- 
crees of  absolute  divorce,  where  the  complainant  asks  for  a 
limited  divorce  only,  if  the  circumstances  of  the  case  are  such 
that  public  policy  or  the  interests  of  the  parties  and  the  public 
will  be  better  protected  than  by  a  limited  divorce.8 

§33 1 .    Extreme  Cruelty. 

Extreme  cruelty  as  a  ground  for  divorce  may  embrace  a 
good  many  different  acts,  and  the  term  is  somewhat  elastic. 
What  may  amount  to  such  cruelty  as  would  constitute  good 
cause  for  a  divorce  in  one  case  may  be  entirely  insufficient  in 
another.  Those  acts,  or  that  conduct  and  language,  which  in 
some  conditions  of  life  would  pass  as  ordinary  incidents  of  the 
marriage  relation,  might  constitute  in  other  social  phases 
the  very  refinement  of  cruelty.9 

It  .is  not  essential  that  the  misconduct  charged  as  extreme 
cruelty  should  be  of  a  criminal  character,  or  suqh  as  the 
guilty  party  cau  be  prosecuted  for  in  the  criminal  courts,  but 
it  is  sufficient  if  the  acts  are  such  as  are  calculated  to  destroy 
the  plaintiff's  happiness,  and  have  that  effect.10  When  alleged 

7.  Horning     v.     Horning,     162  258,    118   N.   W.    932;    Horning  v. 
Mich.  130,  127  N.  W.  275;  Coon  v.  Horning,    162    Mich.    130,    127    N. 
Coon,    163    Mich.    644,    129    N.    W.  W.  275;   Coon  v.  Coon,  163  Mich. 
12.  644,  129  N.  W.  12. 

8.  Burlage  v.  Burlage,  65  Mich.  9.     Hall  v.  Hall,  172  Mich.  210, 
624,    32    N.    W.    866;    Sullivan    v.       13Z  N.  W.  536. 

Sullivan,  112  Mich.  674,  71  N.  W.          10.     Bearinger     v.       Bearinger, 
487;    Utley   v.    Utley,    155    Mich.       170  Mich.  661,  136   N.  W.  1117. 

226 


ACTS  CONST rr i  TIM;   EXTREME  CRUELTY  §333 

as  a  cause  for  divorce,  it  must  be  shown  to  be  of  such  an  ag- 
gravating character  as  to  subvert  the  family  relations  by  ren- 
dering llie  association  intolerable.11 

§332.     Evidence  to  Establish  Extreme  Cruelty. 

The  evidence  to  establish  extreme  cruelty,  sufficient  to 
authorize  a  decree  of  divorce  for  that  cause,  must  relate  to  the 
specific  acts  charged  in  the  lull  of  complaint.  A  decree  of 
divorce  cannot  be  sustained  on  the  ground  of  extreme  cruelty 
upon  evidence  of  acts  or  conduct  not  set  up  in  the  bill.  And 
if  the  bill  alleges  extreme  cruelty  in  general  terms  only,  with- 
out setting  up  any  particular  acts  or  conduct,  no  proof  of 
cruelty  can  be  introduced.12 

But  where  the  specific  acts  of  cruelty  relied  upon  are  suffi- 
ciently set  forth  in  the  bill,  the  evidence  is  not  necessarily  con- 
fined to  those  acts,  hut  whatever  will  serve  to  explain  or  give 
character  to  them  may  he  shown.  Acts  of  personal  violence 
even,  when  intrinsically  and  separately  considered,  may  not 
amount  to  such  a  degree  of  cruelty  as  to  justify  a  divorce,  yet 
when  attended  by  such  habitual  cruel  behavior  as  to  amount 
to  an  outrage  upon  the  sense  of  decency  and  propriety  of  the 
one  affected  by  it,  a  case  of  extreme  cruelty  is  made  out.13 

§333.     Acts  Constituting  Extreme  Cruelty. 

A  long  and  continuous  course  of  conduct  by  one  of  the 
parties  toward  the  other,  without  the  fault  of  the  other,  which 
results  in  making  the  matrimonial  relation  unendurable  and 
in  driving  the  latter  from  the  home  of  the  offender,  is  such  ex- 
treme cruelty  as  the  statute  contemplates  as  just  ground  for  a 
divorce  from  bed  and  board,  and,  in  the  discretion  of  the  court, 
for  an  absolute  divorce.14 

So  the  persistent  circulation  of  false  and  slanderous  reports 
by  a  husband,  derogatory  to  his  wife's  chastity,  especially 
when  the  wife  is  of  a  refined  and  sensitive  nature,  will  author- 
ize a  decree  of  divorce,  either  limited  or  absolute.1'1 

The  persistent,  wilful,  and  habitual  conduct  of  a  wife  to- 
ll.    Cooper  v.  Cooper,  17  Mich.          13.     Briggs  v.  Briggs,  20  Mich. 
210;   Chaffee  v.  Chaffee,  16  Mich.       34. 
184.  14.     Briggs  v.  Briggs,  20  Mich. 

12.     Bennett     v.     Bennett,     24       45,  46. 

Mich.  482;  Dashback  v.  Dash-  15.  Goodman  v.  Goodman.  26 
back,  62  Mich.  322,  28  N.  W.  812.  Mich.  417. 

227 


DIVORCE  FROM   BED  AND  HOARD 

ward  her  husband  in  an  offensive  and  opprobrious  manner,  ac- 
cusing him  in  public  and  private  of  infamous  conduct  in  viola- 
tion of  his  marriage  duties,  and  calling  him  vile  and  vulgar 
names,  may  amount  to  such  extreme  cruelty  as  will  justify  a 
divorce.16 

Consorting  with  persons  of  loose  morals,  or  lascivious  in- 
clinations toward  the  opposite  sex,  and  showing  or  expressing 
a  preference  for  them,  may  be  such  extreme  cruelty  toward  the 
injured  spouse  as  will  justify  a  decree  of  divorce.17 

The  communication  of  a  venereal  disease18  is  extreme  cruelty, 
and  will  justify  a  decree  of  divorce,  either  limited  or  absolute; 
but  the  fact  that  a  wife  of  unimpeached  character  is  found  to 
have  such  a  disease  is  not  of  itself  sufficient  evidence  that  it 
was  communicated  to  her  by  her  husband.19 

Among  other  acts  constituting  extreme  cruelty  within  the 
meaning  of  the  statute  may  be  enumerated  personal  vio- 
lence;20 abusive  epithets  and  blows;21  violence  and  threats  of 
injury;22  fault  finding,  nagging,  profanity,  abuse  and  violent 
conduct;23  compelling  a  wife  to  submit  to  an  abortion;24  abu- 
sive epithets  applied  by  the  wife,  and  refusal  to  prepare  meals ; 
25  unreasonably  and  persistently  prejudicing  children  against 
their  mother;26  unreasonable  refusal  of  intercourse  by  the 
wife;27  persistently  addressing  the  wife  in  brutal  language,28 
accusing  her  of  adultery,  perjury  and  fraud;29  profane,  ob- 
scene and  insulting  language,  habitually  indulged  in  towards 
a  wife  of  refined  feelings  and  sensitive  nature;30  accusations 
against  the  wife  of  immoral  or  unchaste  conduct;31  calling 

16.  Whitmore  v.  Whitmore,  49  24.     Dunn   v.    Dunn,   150   Mich. 
Mich.  417,   13  N.  W.  R.  769.  476,  114  N.  W.  385. 

17.  McClung  "v.    McClung,    40  25.     Begrow     v.     Begrow,     162 
Mich.   493.  Mich.  349,  127  N.  W.  256. 

18.  Canfield     v.     Canfield,     34  26.     McDuffee  v.  McDuffee,  169 
Mich.    519;     Holthoefer     v.     Hoi-  Mich.   410,  135  N.  W.N  242. 
thoefer,   47  Mich.  260,   11    N.    W.  27.     Case    v.    Case,     159     Mich. 
150.  491,    122    N.    W.    538. 

19.  Holthoefer    v.     Holthoefer,  28.     Hoyt  v.  Hoyt,  56  Mich.  50 
47  Mich.  260,  11  N.  W.  R.  150.  22  N.  W.   105. 

20.  Austin  v.  Austin,  172  Mich.  29.     Walsh   v.   Walsh,   61   Mich. 
620,  138  N.  W.  215.  554,  28  N.  W.  718. 

21.  Murray     v.     Murray,     169  30.     Bennett     v.     Bennett,      24 
Mich.  388,  135  N.  W.  262.  Mich.  484-485;   Palmer  v.  Palmer, 

22.  Utley   v.    Utley,    155    Mich.  45  Mich.  150,  7   N.  W.  760. 

258,   118  N.  W.   932.  31.     Kraft   v.    Kraft,    160   Mich. 

23.  Jarstfer    v.     Jarstfer,     162       654,  125  N.  W.  693. 
Mich.   196,  127  N.  W.   24. 

228 


ACTS    NOT    i:\TKK.MK    CIMKI.TY  §334 

vile  names  and  persistently  and  without  cause  charging  dis- 
honesty and  infidelity;3-  wife  calling  husband  -opprobrious 
names,  accusations  of  immorality,  and  unreasonable  refusal  of 
cohabitation.33 

While  the  acts  and  conduct  mentioned  in  this  section  have 
been  adjudicated  to  be  such  extreme  cruelty  as  will  justify  a 
decree  of  divorce  under  the  circumstances  as  shown,  it  should 
be  borne  in  mind  that  as  a  general  rule  each  case  must  be  gov- 
erned by  its  own  peculiar  circumstances.  It  may  be  stated, 
however,  that  if  such  conduct,  whether  by  the  husband  or  wife, 
is  without  cause  or  excuse,  and  is  persisted  in  until  it  be- 
comes unbearable  and  unendurable  by  the  innocent  party,  a 
decree  of  divorce  should  be  granted ;  and  in  the  more  extreme 
cases  an  absolute  divorce,  it  is  believed,  would  be  better  and 
more  conducive  to  good  morals  than  a  decree  of  separation. 
Neither  considerations  of  morality  nor  of  public  policy  should 
compel  a  faithful  wife  to  be  bound  for  life  to  a  brutal,  drunken 
husband,  nor  a  kind  and  indulgent  husband  to  be  forced  to 
submit  to  the  baseless  accusations  of  crime  and  immorality  of 
a  wife  who  constantly  and  persistently  violates  her  marriage 
vow. 

§334.     Acts  not  Extreme  Cruelty. 

It  is  not  every  act  of  imkindness,  nor  every  act  of  selfishness 
or  temper,  that  will  constitute  extreme  cruelty  within  the  con- 
templation of  the  statute.  It  has  been  held  that  the  following 
acts  do  not  constitute  such  extreme  cruelty  as  will  justify  a 
decree  of  divorce:  Quarreling,  and  a  single  acfyof  violence;84 
petty  annoyances  and  fault-finding  ;35  unhappiness  arising  from 
unruly  tempers  and  mutual  wrangling;36  irascibility  and 
harshness  when  provoked  purposely;36*  a  single  act  of  cause- 
less violence;  37  mutual  wrangling  and  exhibitions  of  unruly 
temper.38  A  husband  will  not  be  heard  to  complain  of  cruelty 
by  his  wife  when  he  is  at  the  same  time  denying  to  her  all  con- 

32.  Delor   v.    Delor,   159   Mich.  36.     Rose  v.  Rose,  50  Mich.  92, 
624,  124  ,N.  W.  544.  14  N.  W.  711. 

33.  Waldhorn      v.      Waldhorn,  37.     German     v.     German,     57 
165  Mich.  130,  130  N.  W.  199.  .Mich.  256,  23  N.  W.  802. 

34.  Root   v.    Root,     164     Mich.  38.     Cooper  v.  Cooper,  17  Mich. 
638,  130  N.  W.  194.  210;  Johnson  v.  Johnson,  49  Mich. 

35.  Johnson     v.     Johnson,      49  639,  14  N.  W.  670. 
Mich.  639.  14  X.  W.  670. 

229 


§335  DIVORCE  FROM   BED  AND  BOARD 

sideration  due  to  her  as  such.39 'Incompatibility  of  temper  and 
mutual  quarreling  constitute  no  ground  for  divorce.40 

§335.     Condonation  of  Extreme  Cruelty. 

The  offense  of  extreme  cruelty  may  be  condoned  the  same  as 
any  other  cause  for  divorce.  If  the  injured  party  seeks  a 
reconciliation,  and  marital  relations  are  resumed  uncondition- 
allV,  ordinarily  the  act  of  cruelty  is  condoned.41 

But  continuance  of  the  marriage  relation  after  one  of  the 
parties  has  been  guilty  of  extreme  cruelty,  sufficient  to  justify 
a  decree  of  divorce,  does  not  furnish  a  defense  on  the  ground 
of  condonation,  unless  the  offense  is  not  repeated,  and  unless 
proper  subsequent  treatment  is  shown.42  Condonation  of  an 
offense  exists  only  upon  condition  that  it  shall  not  be  repeated, 
and  also  that  afterwards  the  party  whose  offense  is  forgiven 
shall  treat  the  other  with  conjugal  kindness;  and  a  breach  of 
such  condition  will  revive  the  original  right  to  a  divorce.43 

The  fact  that  after  being  cruelly  treated,  to  the  extent  that 
she  has  good  ground  for  divorce,  a  wife  continues  to  live  with 
•  her  husband  for  several  years  in  the  hope  of  receiving  proper 
treatment,  in  which  she  is  disappointed,  will  not  constitute 
such  condonation  of  the  original  cruelty  as  will  preclude  her- 
from  relying  on  it  in  her  suit  for  divorce.44 

But  while  condonation  is  conditional  upon  an  express  or 
implied  promise  that  the  offense  forgiven  shall  not  be  repeated, 
and  that  the  party  forgiven  shall  treat  the  other  thereafter 
~with  conjugal  kindness,  it  is  not  be  treated  as  a  matter  of 
strict  contract.  It  is  more  properly  a  question  of  whether  the 
facts  warrant  the  conclusion  that  there  was  forgiveness,  recon- 
ciliation, reunion  and  restoration  of  all  marital  rights.45 

39.  Holmes      v.      Holmes,       44  43.     2  Bishop  on  Marriage  and 
Mich.   555,  7  N.  W.  228.  Divorce,     Sec.     308-9;     Creech     v. 

40.  Root    v.    Root,    164    Mich.  Creech,   126   Mich.    267,   85   N.  W. 
638,   130  N.   W.   194;    Morrison  v.  726. 

Morrison,  64  Mich.   53,   30  N.  W.  44.     Creyts  v.  Creyts,  133  Mich. 

903.  4,  94  N.  W.  383. 

41.  Runkle  v.  Runkle,  96  Mich.  45.     Creech  v.  Creech,  126  Mich 
493,   56   N.   W.    2;    Tackaherry   v.  268,  85  N.  W.  726;  2  Bishop,  Mar. 
Tackaberry,     101     Mich.     102,     59  Div.  &  Sep.,  Sec.  271;  9  Am.  and 
N.  W.  400.  Eng.  Enc.  of  Law  ,(2nd  Ed.)   822 

42.  Hazelton    v.    Hazelton,    162  and  note. 
Mich.   192,   127  N.  W.   297. 

230 


I:I:ITSAI.  OK  n  rsr..\\i»  TO  sri-i-ouT  \VIKK 

• 
§335a.     Refusal  of  the  Husband  to  Support  the  Wife. 

A  divorce  from  bed  and  board  forever,  or  for  a  limited  time, 
may  be  decreed  on  the  complaint  of  the  wife,  "when  the  hus- 
band, being  of  sufficient  ability  to  provide  a  suitable  mainte- 
nance for  her,  shall  grossly  or  wantonly  and  cruelly  refuse  or 
neglect  so  to  do."46  The  court  may,  in  its  discretion,  grant  an 
absolute  divorce  for  the  same  cause,  when  asked  for  in  the  bill 
of  complain!,  if  in  the  opinion  of  the  court  it  will  be  discreet 
and  proper  so  to  do,  under  the  particular  circumstances  of  the 
case,  if  i lie  court  shall  deem  such  absolute  divorce  for  the  best 
interest  of  the  parties.47 

The  same  statute  also  provides  for  a  limited  divorce  or  an 
absolute  one,  under  similar  conditions,  for  "utter  desertion 
by  either  of  the  parties  for  the  term  of  two  years." 

In«a  bill  for. limited  divorce  on  the  ground  of  the  husband's 
refusal  to  support  the  wife,  an  allegation  charging  the  hus- 
band \vith  "inhuman  and  cruel  treatment,"  and  that  "he  had 
Crossly,  wantonly  and  cruelly  refused  and  neglected  to  pro- 
vide a  suitable  maintenance,"  states  sufficient  cause  for  a  di- 
vorce, and,  if  such  allegation  is  supported  by  the  proof,  will 
justify  a  decree  of  divorce  from  bed  and  board,  In  such  a  case 
it  is  not  necessary  to  aver  any  cruel  treatment,  except  what  is 
involved  in  the  gross,  wanton  and  cruel  neglect  or  refusal  to 
support  the  wife,  the  defendant  being  of  sufficient  ability.  I'n- 
der  such  averments  all  those  facts  and  circumstances  tending 
to  show  that  the  neglect  and  refusal  were  gross,. wanton  and 
cruel,  are  admissible  in  evidence.48 

Willingness  of  the  husband  to  support  the  wife  in  his  own 
home  is  no  defense  to  her  claim  of  right  to  l»e  supported  else- 
where, when  his  treatment  of  her  In  such  as  to  render  it  un- 
safe and  improper  for  her  to  reside  and  cohabit  with  him.4" 
Hut  an  obligation  of  the  husband  to  support  the  wife  elsewhere 
than  in  his  own  home  can  arise  only  by  his  turning  her  away 
from  such  home,  or  by  his  being  guilty  of  such  misconduct  as 
wowld  justify  her  in  leaving  him. 

If  the  conduct  of  a  husband  towards  his  wife  is  such  that 
she  cannot  safely  and  properly  live  with  him,  and  for  that  rea- 

46.  C.  L.  1915,    (11398) ;   How-  48.     Brown  v.  Brown,  22  Mich, 
ell,  2nd.  Ed.,  §11460.  242. 

47.  P.  A.  1907,  p.  426;  Howell,  49.     Brown  v.  Brown,  22  Mich. 
2nd.  Ed.,  §11460.  242;  Randall  v.  Randall,  37  Mich. 

i-74. 

231 


§335a  DIVORCE  FROM  BED  .  AND  BOARD 

son  it  becomes  necessary  for  her  to  leave  the  home,  she  does 
not  thereby  relinquish  her  right  to  support  from  her  husband. 
His  obligation  to  support  her  remains  the  same,  although  by 
his  own  conduct  he  has  relinquished  his  right  to  the  wife's 
services,  which  constitute  the  consideration  for  his  obligation 
to  support  her.50 

The  failure  of  a  husband  to  support  his  wife,  which  is  due 
to  lack  of  success  in  business,  is  not,  ordinarily,  ground  for 
divorce.  In  all  cases  for  divorce,  either  absolute  or  limited, 
on  the  ground  of  failure  to  support  the  wife,  it  must  be  made 
to  appear  that  the  husband  is  of  sufficient  ability*,  and  that 
without  any  reason  or  cause  whatever  he  neglects  or  refuses 
to  furnish  such  support. 

The  wife's  right  is  to  be  supported  at  her  husband's  domi- 
cile, unless  she  has  lost  that  right  by  misbehavior.51 

Where  a  wife  who  is  seeking  a  divorce  is  justified  by  her 
husband's  conduct  in  living  apart  from  him,  he  is  under  legal 
obligation  to  support  her  elsewhere.52 

50.  Randall     v.     Randall,     37      109. 

Mich.  574;  Stewart  v.  Stewart,  52.  Page  v.  Page,  51  Mich.  88, 
155  Mich.  421,  119  N.  W.  444.  16  N.  W.  245. 

51.  Snyder  v.  People,  26  Mich. 


232 


CHAPTER  XXXI. 

<;I:M;KAL  PROVISIONS  IN  ACTIONS  FOR  DIVORCE 
AND  ANN!  LMENT  OF  MARRIAGE. 

$336.    Residence  of  Parties. 

8337.    Oath  of  Plaintiff  as  to  Collusion. 

§338.    Wife  may  File  Bill  in  her  Own  Name. 

§339.    Temporary  Alimony  and  Expense   Money — Costs. 

§340.  Restraint  of  Liberty  of  Wife  and  Care  of  Children  while  Suit 
is  Pending. 

§341.     Custody  and  Care  of  Children  on  Final  Decree. 

§342.    Wife  Entitled  to  her  .Real  Estate— When. 

§343.     Restoration  of  Personal  Estate  of  Wife. 

§344.     Trustees — When   may  be  Appointed. 

§345.     Duties  of  Trustees — Bonds. 

§346.     Husband  to  Disclose  on  Oath. 

§347.     Permanent  Alimony. 

§348.     Ascertainment  of  Amount. 

§349.     Limitation  of  Power  of  Court  to  Award. 

§350.     Testimony — When  and  how  Taken. 

§351.     Dower— When  Wife  Entitled  to. 

§352.     Lien  on  Real  and  Personal  Estate. 

§357-.    Enforcement  of  Lien. 

§358.    Execution  to  Collect — Sale  or  Division  of  Property. 

§359.    Suit  to  Foreclose  Lien. 

§360.    Court  may  Alter  Decree. 

§361.  Legitimacy  of  Children  in  certain  Cases — Adultery — Former 
Spouse  Living — Non-Age. 

§362.    Cohabitation  after  Divorce— How  Punished. 

§363.  Who  may  File  Bill  to  Annul  Marriage — In  Case  of  Non-Age — 
Idiocy  or  Lunacy. 

§364.  Annulment — Force  or  Fraud — Denied  When — Custody  of  Chil- 
dren. 

§365.     Physical   Incapacity — Limitations. 

§366.     Admissions  and  Confessions — Testimony  of  Parties. 

§367.    Court  may  Deny  Relief  in  Certain  Cases  of  Adultery. 

§368.    Forgiveness   and  Condonation. 

§369.    Support  when  Divorce  from  Bed  and  Board  Denied. 

§370.     Divorce  from  Bed  and  Board  Revoked. 

§371.     Special  Question  to  be  Asked  of  Witnesses. 

§372,  Bill  of  Complaint  to  Allege  Names  and  Ages  of  Children.  Ser- 
vice of  Summons  on  Prosecutor. 

§373.  Remarriage  may  be  Forbidden— Limit  of  Time — Penalty  for 
Violation. 

§374.     Dower" — Provision  in  Lieu  of  Tenants  by  Entireties. 

§375.     Alimony — When  Decree  Rendered  in  Another  State. 

§376.     Restoring  Former  Name  to  Wife. 

§377.    Right  of  Husband  to  Alimony  out  of  Wife's  Property. 

233 


§336  ACTIONS    FOR    DIVORCE    AND    ANNULMENT 

§336.    Residence  of  Parties. 

The  Michigan  statute  provides  that  "no  decree  of  divorce 

shall  be  granted  by  any  court  of  this  state  in  any  case  unless : 

first,  the  party  applying  therefor  shall  have  resided  in  this 

state  for  one  year  immediately  preceding  the  time  of  filing  the 

~  ^    bill  or  petition  therefor ;  or  second,  the  marriage  which  it  is 

/  I       sought  to  dissolve  was  solemnized  in  this  state,  and  the  party 

applying  for  such  divorce  shall  have  resided  in  this  state  from 

the  time  of  such  marriage  until  the  time  of  bringing  such  suit 

for  divorce." 

The    statute    further    provides    that    no    divorce    shall    be 

>  granted  unless  one  of  the  following  facts  exists:  first,  when 
the  defendant  is  domiciled  in  this  state  at  the  time  the  bill  is 
X  filed;  or  second,  when  the  defendant  was  domiciled  in  this 
state  when  the  cause  for  divorce  alleged  in  the  bill  arose;  or 
third,  when  the  defendant  shall  have  been  brought  in  by  pub- 
lication, or  shall  have  been  personally  served  with  process  in 
this  state,  or  shall  have  been  personally  served  with  a  copy 
of  the  order  for  appearance  and  publication  within  this  state 
or  elsewhere,  or  has  -voluntarily  appeared  in  the  action. 

If  the  order  for  appearance  and  publication  is  served  out- 
side this  state,  proof  of  such  service  must  be  made  by  the  affi- 
davit of  the  person  who  serves  the  same,  and  such  Affidavit 
may  be  made  before  a  justice  of  the  peace  or  notary  public. 

If  the  affidavit  is  made  outside  the  state,  it  must  be  authen- 
ticated by  the  certificate  of  the  clerk  of  a  court  of  record,  cer- 
tifying to  the  official  character  of  the  justice  or  notary,  and 
the  genuineness  of  his  signature  to  the  jurat  of  the  affidavit. 

In  all  cases  where  divorce  is  asked  on  the  ground  of  de- 
sertion, such  desertion  is  deemed  to  have  occurred  and  taken 
place  in  this  state,  for  tlie  purpose  of  this  act,  when  the  par- 
ties, plaintiff  and  defendant,  shall  have  been  actually  domi- 
ciled in  good  faith,  in  this  state  at  the  time  the  defendant 
actually  abandoned  the  plaintiff,  without  the  proof  of  his  or 
her  actual  intent  at  the  time  of  such  abandonment. 

When  the  bill  charges  that  the  cause  or  causes  for  divorce 
occurred  out  of  this  state,  no  decree  of'  divorce  can  be  granted 
unless  the  plaintiff  or  defendant,  one  or  both  of  them,  shall 
have  resided  in  this  state  for  two  years  immediately  preced- 
ing the  'time  of  filing  the  bill. 

No  proofs  or  testimony  can  be  taken  in  any  action  for  divorce 
until  the  expiration  of  two  months  from  the  time  of  filing 

234 


OATH    or    i-i.Ai.vnrr    AS    TO   rou.rsiox 

the  lull, \e.\cept  where  the  cause  for  divorce  alleged  in  tin-  bill 
is  desertion,  or  \vlicn  testimony  is  taken  condit ionally  for  the 
purpose  of  perpetuating  such  testimony. 

When  the  dele ndaiit  iii  a  divorce  suit  was  not  domiciled  in 
this  state  at  ilie  lime  the  suit  was  commenced,  or  shall  not 
have  been  domiciled  therein  at  the  time  the  cause  for  divorce 
arose,  before  any  decree  of  divorce  can  be  granted  the  plain 
tiff  must  prove  that  the  parties  have  actually  lived  and  co- 
habited together  as  husband  and  wife  \\ithin  this  state,  or 
that  the  plaintiff  has  in  good  faith  resided  in  this  state  for 
two  years  immediately  preceding  the  time  of  filing  the  bill  for 
divorce.1 

The  statutory  provisions  as  to  residence  are  mandatory,  and 
the  place  of  residence  must  be  shown  by  intention  and  acts. 
An  admission  by  the  defendant's  answer,  of  complainant's 
residence  as  alleged  in  the  bill,  is  not  sufficient  to  confer  juris- 
diction. Such  residence  must  be  proven  as  a  fact,  regard- 
'  —  "I  the  admissions  of  the  answer.  Intention  has  always 
been  given  large  consideration  in  determining  the  question 
of  residence,  but  it  is  not  controlling  without  acts  to  support 
it.  and  such  acts  should  be  such  as  fairly  tend  to  show  the 
intention.2 

§337.     Oath  of  Plaintiff  as  to  Collusion. 

The  statute  positively  forbids  the  granting^of  a  decree  of 
divorce  when  it  appears  that  the  bill  therefor  was  founded 
in,  or  exhibited  by,  collusion  between  the  parties.  The  oath 
or  affirmation  administered  to  the  plaintiff  in  swearing  to  the 
bill,  in  addition  to  all  other  legal  requirements,  must  recite 
the  following:  "And  you  do  solemnly  swear  (or  attirnn 
that  there  is  no  collusion,  understanding  or  agreement  what- 
ever between  yourself  and  the  defendant  herein  in  relation 
to  your  application  for  a  divorce."  The  statute  also  positive- 
ly forbids  a  divorce  in  any  case  where  the  plaintiff  is  guilty 
of  the  same  crime  or  misconduct  charged  against  defendant.8 

The  provision  of  the  statute  which  forbids  a  divorce  when  it 
appears  that  the  bill   is  founded   on   collusion  between    the 

1.    C.   L.   1915,    (11400);    How-  Prettyman,  125  Ind.  149;  Schmidt 

ell,  2nd  Ed.,   §11461.  v.  Schmidt,  29  N.  J.  Eq.  496;  Ben- 

I.     Bradfield    v.    Bradfield,    154  nett  v.  Bennett,  28  Cal.  600. 

Mich.    115,    117    N.    W.     R.     558;  3.     C.   L.   '15,    (11401);    Howell. 

Smith  v.  Smith.   10  N.  t)ak.  219,  2nd.  Ed.,  §11462. 
s«    N.   W.   R.    721;    Prettyman   v. 

235 


§338  ACTIONS    FOR    DIVORCE    AND    ANNULMENT 

parties  is  mandatory,  and  is  based  on  public  policy,  which 
wisely  forbids  the  annulment  of  the  marriage  contract  by 
agreement  of  the  parties.4  Where  both  parties  are  at  fault, 
and  where  the  plaintiff  is  guilty  of  the  same  misconduct  as  is 
charged  against  the  defendant,  a  decree  of  divorce  will  also 
be  denied.5  This  provision  is  an  application  and  legislative 
sanction  of  the  equitable  rule  that  one  who  comes  into  a 
court  of  equity,  asking  for  relief  and  redress  'of  alleged 
wrongs,  must  come  with  clean  hands.  Divorce  is  a  remedy 
for  the  innocent  and  injured  party,  and  a  plaintiff  who  him- 
self has  violated  his  marriage  vows  has  no  standing  in  a  court 
of  equity,  to  be  relieved  of  the  obligations  which  the  marriage 
relation  places  upon  him,  because  the  other  spouse  has  also 
broken  it.  "The  law  is  for  the  assistance  of  those  who  obey  it, 
and  not  for  those  who  violate  it,  and,  where  two  parties  are 
both  in  the  same  wrong,  the  court  helps  neither."6 

The  statute  does  not  permit  the  courts  to  apply  the  rule  of 
comparative  wrong  doing,  and  to  grant  relief  to  the  one  found 
guilty  of  the  lesser  misconduct,  against  the  one  found  guilty 
of  the  greater."  The  statute  contemplates  no  such  rule,  and 
is  imperative  that  no  divorce  shall  be  granted  in  any  case, 
where  the  plaintiff  shall  be  guilty  of  the  same  misconduct  as 
that  charged  against  the  other  party."  7 

§338.    Wife  may  File  Bill  in  her  Own  Name. 

The  wife  may  file  the  bill  in  her  own  name,  as  well  as  the 
husband,  and  in  all  cases  the  answer  to  the  bill  may  be  with- 
out oath  or  affirmation.8  And ;  she  may  become  personally 

4.  Thompson   v.   Thompson,  70  6.     Kellogg     v.      Kellogg,       171 
Mich.  62,  37  N.  W.  R.  710;  Ayres  Mich.    518,    137   N.   W.    R.   249;    2 
v.  Wayne  Circuit  Judge,  90  Mich.  Bishop   on  Marriage  and  Divorce 
380,  51  N.  W.  R.  461;  McWilliams  (5th    Ed.)    Sec.     87;     Stafford    v. 
v.    Lenawee     Circuit     Judge,     142  Stafford,   53  Mich.   522,   19  N.  W. 
Mich.  226,  105  N.  W.  R.  611.        •  R.   201;    Warner    v.    Warner,    54 

5.  Warner  v.  Warner,  54  Mich.  Mich.  492,  20  N.  W.  R.  557;  Stiehr 
494,    20    N.    W.    R.    557;    HofE    v.  v.     Stiehr,     145    Mich.     297,     108 
Hoff   48    Mich.    281,   12    N.   W.   R.  N.  W.   R.  684;   Root  v.  Root,  164 
160;     Morrison     v.    Morrison,    64  Mich.  638,  130  N.  W.  R.  194,  32  L. 
Mich.  53,  30  N.  W.  R.  903;  Minde  R.   A.    (N.   S.)     837,    Ann    Cases, 
v.  Minde,  65  Mich.  633,  32  N.  W.  1912  B.  740;  14  Cyc.  pp.  648-649. 
R.    868;    Peck   v.    Peck,   66    Mich.  7.     Kellogg     v.      Kellogg,      171 
586,  33  N.  W.  R.  893.     Sissung  v.  Mich.    518,   137   N.   W.   R.    249. 
Sissung,    65  Mich.    179,   31  N.  W.  8.     C.  L.  1915,  (11402)  ;  Howell, 
R.   770;    Kellogg  v.    Kellogg,    171  2nd.  Ed.,  §11463. 

Mich.  518,  137  N.  W.  R.  249. 

236 


TKMroKAKY    ALIMONY    AM"     EXPXJ988     MONEY 

liable  for  attorney  fees  and  expenses  in  n  divorce  suit  in  which 
she  is  a  party,  either  as  plaintiff  or  as  defendant."  "The 
statute  clearly  indicates  that  such  proceedings  are  to  be  main- 
tained at  the  cost  of  the  wife,  unless  the  court  shall  relieve 
her  of  such  costs  by  an  order  for  expense  nionev  to  be  paid 
by  the  husband."10 

§339.     Temporary  Alimony  and  Expense  Money— Costs. 

The  statute  provides  that  in  all  suits  brought  for  divorce 
or  separation,  the  court,  in  its  discretion,  may  require  the  hiis 
band  to  pay  any  sums  necessary  to  enable  the  wife  to  defend 
or  carry  on   the   suit  during   its  pendency.    The  court  also. 

1  in  its  discretion,  may  decree  costs  against  either  party  and 
award  execution  for  the  same,  or  it  may  order  such  costs  to  be 
paid  out  of  any  property  sequestered,  or  in  the  power  of  the 
court,  or  in  the  hands  of  a  receiver.11  If  the  wife  has  no 
means  of  support  or  to  defray  her  necessary  expenses  in  de- 
fending or  prosecuting  the  suit,  and  her  husband  has  property 
or  good  earning  capacity  and  opportunity,  the  court  will 
order  him  to  advance  a  suitable  amount  to  her  for7  such  pur- 
poses.12 

While  this  section  of  the  statute  docs  not  in  express  terms 
authorize  temporary  alimony,  it  is  only  confirmatory  of  the 
common  law,  which  requires  a  husband  to  support  his  wife 
while  the  marriage  relation  exists.  The  right  to  grant  tem- 
porary alimony  has  always  been  recognized  in  divorce  sniis 
when  the  circumstances  required  it.  Whether  this  section  con 
templates  advances  for  support,  or  must  be  confined  strictly 
to  legal  expenses,  is  of  little  importance,  if  any,  as  such  allow- 
ances always  have  been  upheld  when  necessary  to  pi-event  a 
failure  of  justice,  and,  in  the  discretion  of  the  court,  may  be 
allowed,  although  the  wife  has  some  property  of  her  own.  if 
the  income  therefrom  is  not  sufficient  for  her  support.13 

The  amount  of  temporary  alimony  and  expense  money  to  be 

'     allowed  rests  in  the  discretion  of  the  court,  and  should  be  con 
fined  to  what  is  reasonably  necessary  in  each  case,  due  regard 

9.  Wolcott    v.     Patterson,     100       421;    Goldsmith    v.    Goldsmith,    6 
Mich.  228,  58  N.  W.  R.  1006.  Mich.   285. 

10.  Ross  v.  Ross,  47  Mich.  185,  13.     Hairfes  v.  Halnes,  35  Midi. 
10  N.  W.  R.  193.                                        143;    Rose  v.  Rose,  53  Mich.   585, 

11.  C.  L.  1915,  (11404);  Howell,       19  N.  W.  R.   196;*  Potts  v.  Potts, 
2nd   Ed.,  §11465.  68  Mich.  495,  36  N.  W.  R.  240. 

12.  Story  v.   Story,  Walk.  Ch. 

237 


ACTIONS    FOR    DIVORCE    AND    ANNULMENT 

being  had  to  "the  husband's  'ability  and  to  the  circumstances 
peculiar  to  the  particular  case  before  the  court.  When  the 
husband's  condition  is  such  that  his  means  are  not  sufficient 
to  maintain  his  wife  and  family  without  the  assistance  of 
their  labor,  she  should  not  receive  an  allowance  so  large  as  to 
permit  her  to  live  in  idleness.14 

§340.    Restraint  of.  Liberty  of  Wife  and  Care  of  Children  while 
Suit  is  Pending. 

After  the  bill  has  been  filed  in  a  suit  for  divorce  or  to  annul 
a  marriage,  the  court  in  which  the  suit  is  pending,  on  petition 
of  the  wife,  may  prohibit  the  husband  at  any  time,  either  in 
term  or  vacation,  from  imposing  any  restraint  on  her  personal 
liberty  during  the  pendency  of  the  suit.15  The  court  also,  on 
the  application  of  either  party,  may  make  such  order  concern- 
ing the  care  and  custody  of  the  minor  children  of  the  parties, 
and  their  suitable  maintenance  during  the  pendency  of  the 
suit,  as  shall  be  deemed  proper  and  necessary,  and  for  their 
benefit.16 

§341.     Custody  and  Care  of  Children  on  Final  Decree. 

Upon  granting  a  sentence  or  decree  of  nullity,  or  upon  de- 
creeing a  divorce,  whether  absolute  or  limited,  it  is  the  duty  of 
the  court  to  make  such  further  decree  as  shall  be  just  and 
proper  concerning  the  care,  custody  and  maintenance  of  the 
minor  children  of  the  parties;  and  the  court  may  determine, 
and  provide  in  the  decree,  with  which  of  the  parents  the  chil- 
dren, or  aqy  of  them,  may  remain.17 

As  a  general  .rule  it  may  be  said  that  the  mother  is  entitled 
to  the  care  and  custody  of  all  such  children  under  twelve 
years  of  age,  and  the  father  to  the  care  and  custody  of  those 
of  the  age  of  twelve  years  or  more.18.  This  rule,  however, 
which  is  statutory,  is  not  so  mandatory  as  to  make  the  ages 
of  the  children  the  arbitrary  test  of  their  custody,  either  tem- 
porarily during  the  pendency  of  the  suit,  or  permanently  by 
/  final  decree.  The  statute  has  never  been  construed  as  qualify- 

14.  Ross    v.    Griffin,     53     Mich.       ell,  2nd.  Ed.  §11466. 

7,    18   N.  W.    R.    534;    Fromau   v.  16.     C.  L.  1915,    (11406);   How- 

Froman,   53  Mich.   581,   19  N.  W.  ell,   2nd.  Ed.    §11467. 

R.    193;     Jordan    v.     Jordan,    62  17.     C.  L.  1915,    (11407);   How 

Mich.    178;    Brown    v.    Brown,    22  ell,  2nd.  Ed.,  §11468. 

Mich.  242.  18.     C.  L.  1915,    (11484);    How- 

15.  C.  L.  1915,    (11405);    How-  ell,  2nd.  Ed.,  §11537. 

238 


WIFi:     KVriTI.KIi    'I'O     II  KK    KKAI,    KSTATK 

inu  in-  restricting  the  inherent,  broad,  discret  ionary  powers  of 
a  court  of  chancery  to  adjudicate  MS  to  the  custody  and  con- 
trol of  children  whose  interests  are  before  it,  according  to 
the  varying  elements  for  consideration  arising  in  each  case, 
;md  to  make  stich  disposition  of  each  child  as  its  liest  inter- 
ests appear  to  demand.1"  The  section,  taken  as  a  whole,  indi- 
cates that  it  was  intended  as  a  general  guide  for  the  courts 
when  in  doubt  as  to  which  of  the  parents  is  the  more  tit,  or 
when  neither  is  shown  to  be  unfit  to  have  the  care  and  custody 
of  the  young  children.  It  has  been  construed  to  mean  that 
l»riin<i  fade  the  mother  is  best  entitled  to  the  custody  of  very 
young  children,  favoring  her  in  that  respect,  and  as  meaning 
that  there  should  be  preponderating  reasons  in  favor  of  the 
father  before  a  provision  different  from  that  pointed  out  by 
the  statute  should  be  made.20  The  paramount  consideration 
is  which  parent  is  best  fitted  and  will  be  most  likely  to  give 
the  interests  of  the  children  the  best  consideration.  Neither 
parent  has  any  right  to  the  custody  of  the  (fhild  if  such  custody 
would  seriously  militate  against  its  welfare.21 

A  decree  providing  for  the  care,  custody  and  maintenance 
of  the  minor  children  of  divorced  parties,  is  not  beyond  the 
power  of  the  court  to  revise  or  change.  The  court,  from  time 
to  time  after  the  decree,  ori  the  application  of  either  of  the 
parents,  may  revise  and  alter  such  a  decree,  and  make  a  new 
one  concerning  the  same  subject,  as  the  circumstances  of  the 
parents,  and  the  benefit  of  the  children,  may  require. -- 

§342.    Wife  Entitled  to  her  Real  Estate  -When. 

The  statute  provides  that  "whenever  the  nullity  of  a  mar 
riage,  or  a -divorce  from  the  bond  of  matrimony  for  any  cause 
excepting  that  of  adultery  committed  by  the  wife,  shall  be 
decreed,  and  when  the  husband  shall  be  sentenced  to  impris^ 
onment  for  life,  and  also  upon  every  divorce  from  bed  and 
board,  the  wife  shall  be  entitled  to  the  immediate  possession 

19.  Weiss  v.  Weiss,  174  Mich.  22.   C.  L.  1915,  (11408) ;  Howell, 
435,  140  N.  W.  R.  587.  2nd.  Ed.,  §11469;  Griffin  v.  Griffin, 

20.  Klein  'v.    Klein,    47    Mich.  154   Mich.    536,    118    N.   W.   R.    1; 
518,  11  N.  W.  R.  367;  In  Re  Knott,  Stone  v.  Stone,  161  Mich.  565,  126 
162  Mich.   10,  126  N.  W.  R.   1040i  N.   W.    R.   710;    Dailey   v.    Dail.  y 

L'l  Corrie  v  Corrie.  4L'  Mich.  166  Mich.  170,  131  N.  W.  R.  526. 
509,  4  X.  W.  R.  213. 

239 


§343  ACTIONS    FOR    DIVORCE    AND    ANNULMENT 

of  all  her  real  estate,  in  the  like  manner  as  if  her  husband 
were  dead."23 

If  a  husband  and  wife  are  the  owners  of  real  estate  as  joint 
tenants  or  tenants  by  entireties,  upon  being  divorced  they  be- 
come tenants  in  common  of  such  real  estate,  unless  the  ownef- 
ship  thereof  is  otherwise  determined  by  the  decree  of  divorce.24 

§343.    Restoration  of  Personal  Estate  of  Wife. 

The  statute  also  provides  that  "upon  eVery  such  dissolution 
of  a  marriage  as  is  specified  in  the  preceding  section,  and  also 
upon  every  divorce  from  bed  and  board,  the  court  may  make  a 
further  decree  for  restoring  to  the  wife  the  whole,  or  such 
part  as  it  shall  deem  just  and  reasonable,  of  the  personal  es- 
tate that  shall  have  come  to  the  husband  by  reason  of  the  mar- 
riage, or  for  awarding  to  her  the  value  thereof,  to  be  paid,  by 
her  husband  in  money.26 

Where  it  appeared  that  a  wife  had  put  money  into  her  hus- 
band's business,  but  that  he  had  conveyed  land  to  her  which 
was  a  full  equivalent  therefor  and  of  her  full  share  of  the 
property,  up*on  granting  to  her  a  decree  of  divorce  the  court 
properly  denied  her  claim  for  property  or  money  from  the  de- 
fendant.26 

A  suit  for  divorce  is  not  a  proper  proceeding  in  which  to 
secure  an  accounting  for  the  wife's  property  which  does  not 
relate  to  or  grow  out  of  the  marriage  relation,  but  is  her  sep- 
arate estate  and  subject  to  her  sole  control.27  And  as  a  gen- 
eral rule  third  persons  cannot  be  made  parties  to  a  divorce 
proceeding.  But  where  a  third  person  has  conspired  with  a 
husband  to  procure  the  transfer  of  property  which  is  subject 
to  the  wife's  claim  for  alimony,  with  intent  to  defraud  her  out 
of  her  interest  in  such  property  held  by  reason  of  her  matrital 
rights  in  the  same,  such  third  person  may  be  impleaded  with 
the  husband.28 

23.     C.   L.   1915,    (11409);    How.-          27.     Peck  v.  Peck,  66  Mich.  591, 

ell,  2nd.   Ed.,   §11470;    Johnson  v.  33  N.   W.  R.  894;    Letts  v.  Letts, 

Johnson,  Wai.  Ch.  313.  73  Mich.  138,  41  N.  W.  R.  99;  Uhl 

•     24.     Howell,  2nd.  Ed.,  §11497.  v.  Uhl,  52  Cal.  250. 

25.  C.  L.  1915,    (11410);    How-          28.     Peck  v.  Peck,  66  Mich.  586, 
ell,  2nd.  Ed.,   §11471.  33   N.   W.  R.   894;    Damon  v,  Da- 

26.  Harrison    v.    Harrison,    49  mon,  28  Wis.  510;  Van  Duzer,  v. 
Mich.  240,  13  N.  W.  R.  581.  Van  Duzer,  6  Paige,  366. 

240 


IMTIKS    OF    TIU'STEES 

§344.     Trustees  When  May  be  Appointed. 

Upon  every  divorce  For  adultery  committed  by  the  husband, 
and  upon  every  divorce  from  bed  and  board  for  any  cause, 
when  any  personal  estate  of  the  \\  ife.  or  money  in  lieu  thereof, 
shall  be  awarded  to  her  as  provided  in  the  preceding  section, 
the  court,  instead  of  ordering  it  to  be  delivered  or  paid  into 
the  hands  of  the  \vife.  may  order  it  to  be  delivered  or  paid  into 
the  hands  of  a  trustee  or  trustees,  to  be  appointed  by  the 
court,  upon  trust  to  invest  the  same,  and  to  apply  the  income 
thereof  to  the  support  and  maintenance  of  the  wife,  and  of  the 
minor  children  of  the  marriage,  or  any  of  them,  in  such  man- 
ner as  the  court  shall  direct.29 

§345.     Duties  of  Trustees-^Bonds. 

Such  trustees  shall  also  pay  over  the  principal  sum  to  the 
v  ife  and  children  of  the  marriage,  when  ordered  by  the  court, 
in  such  proportions  and  at  such  times  as  the  court  shall  di- 
reci.  regard  lieiu^  had.  in  the  disposition  of  the  said  income, 
as  well  as  the  principal  sum,  to  the  situation  and  circum- 
stances of  the  wife  and  children;  and  the  said  trustees  shall 
give  such  bonds  as  the  court  shall  require  for  the  faithful  per- 
formance of  their  trust.80  These  two  sections  have  remained 
on  the  statute  books  of  this  state  from  the  time  of  their  enact- 
ment to  the  present  time.81 

It  is  somewhat  difficult  to  understand  just  what  reasons 
could  exist  for  the  appointment  of  a  trustee  for  the  wife  where 
an  absolute  divorce  is  granted  to  the  wife  on  the  ground  of 
the  adultery  of  the  husband,  which  might  not  also  apply  with 
equal  force  to  a  similar  decree  granted  for  any  other  cause. 

.Many  reasons  might  be  given  for  the  services  of  a  trustee  to 
care  for  and  use,  under  the  direction  of  the  court,  such  money 
or  property  as  might  be  awarded  for  the  maintenance  of  the 
wife  and  minor  children  where  the  decree  is  for  a  divorce  from 
bed  and  board  for  a  limited  time. 

The  passage  of  the  married  women's  act  of  1855,  it  would 
seem,  makes  inoperative  many  of  the  provisions  of  statutes 
adopted  prior  to  that  time,  so  far  as  such  earlier  statutes  re- 
late to  the  property  rights  of  husband  and  wife. 

29.  C.  L.  1915,  (11411);  How-   ell,  2nd.  Ed.  §11473. 

ell,  2nd.  Ed.,  §11472.  31.  Mich.  R.  S.  1846,  Ch.  84, 

30.  C.  L.  1916.  (11412);  How-   Sees.  20  and  21,  page  334. 

241 


§340  ACTIONS    FOH   DIVOROK    AND    ANNULMENT 

§346.     Husband  to  Disclose  on  Oath. 

Whenever  the  court  shall  think  proper  to  award  to  the  wife 
any  personal  estate,  or  money  in  lieu  thereof,  in  pursuance 
of  the  foregoing  provisions,  such  court  may  require  the  hus- 
band to  disclose  on  oath  what  personal  estate  has  come  to  him 
by  reason  of  the  marriage,  and  how  the  same  has  been  dis- 
posed of,  and  what  portion  still  remains  in  his  hands.32 


Alimony. 

§347.    Permanent  Alimony. 

The  statute  provides  for  the  payment  to  the  wife  of  per- 
manent alimony  ii^  all  cases  of  absolute  divorce  for  any  cause 
except  that  of  adultery  committed  by  the  wife,  and  also  upon 
every  divorce  from  bed  and  board  for  any  cause.  This  may  be 
by  a  decree  of  a  part  of  the  personal  estate  of  the  husband,  or 
out  of  his  real  estate.  The  decree  may  provide  for  a  payment 
to  the  wife  in  gross  or  otherwise,  as  the  court  may  deem  just 
and  reasonable,  having  regard  \o  the  ability  of  the  husband 
and  the  character  and  situation  of  the  parties.33 

Courts  of  chancery  have  no  inherent  power  to  decree  perma- 
nent alimony.  The  power  is  a  statutory  one,  incident  to  the 
jurisdiction  ever  application  for  divorce.  The  statute  pre- 
scribes the  entire  powers  of  the  court  on  the  subject.  The  jur- 
isdiction is  statutory,  and  cannot  be  extended  beyond  the 
authority  given  by  the  statute.34  In  the  early  case  of  Pellier 
vs.  Pellier,  Har.  Ch.  19,  it  was  held  that  a  court  of  Chancery 
has  no  jurisdiction  of  a  case  where  a  bill  is  filed  for  alimony 
merely.  A  subsequent  statute,  however,  provides  'Tor  filing 
a  bill  for  alimony  and  support  merely,  in  certain  cases  of  de- 
sertion and  neglect  by  the  husband.35 

A  divorce  from  the  bonds  of  matrimony,  or  one  from  bed 
and  board,  is  necessary  before  the  court  may  further  decree 
to  the  wife  alimony  out  of  the  personal  or  real  estate  of  the 
husband.36 

32.  C.  L.  1915,    (11413);   How-       Ch.  19. 

ell,  2nd.  Ed.,   §11474.  35.     C.  L.  1915,    (11479);    How- 

33.  C.  L.  1915,    (11414);    How-       ell,   2nd.   Ed.   §11534. 

ell,  2nd.  Ed.,  §11475.  36.     Nichols     v.     Nichols,     169 

34.  Perkins      v.      Perkins,      16       Mich.  540,  135  N.  W.  R.  328. 

Mich.  161;  Peltier  v.  Peltier,  Har. 

. 

242 


I'I:I:.\IA.\]:NT  A 
The   alimony    >dionld    he    lixed    by    the   judge   who    hears   the 

evidence.*1 

The  power  of  the  court  to  nxvanl  and  lix  the  amount  of  ali- 
mony to  he  paid  to  a  wife  in  a  divorce  proceeding  is  statutory 
and  rests  to  sonic  extent  in  the  discretion  of  the  trial  court. 

The  power  of  the  courts  to  grant  alimony  is  limited  to  the 
cases  pointed  out  by  the  statute.  The  court  of  chancery  has 
no  inherent  power  to  award  permanent  alimony,  and  while 
the  statute  gives  such  court  authority  to  grant  alimony  to  the 
\wife  for  the  support  of  herself  and  minor  children,  and  to 
create  a  lien  against  the  husband's  property  to  secure  its  pay- 
ment, it  confers  no  such  power  to  decree  the  payment  of  any 
mm  to  the  children  on  their  reaching  majority,  or  even  during 
uiimritv.  or  to  create  a  lien  to  secure  the  payment  of  such 
avjml.8'0 

\  decree,  entered  by  consent  of  the  defendant  in  a  divorce 
proceeding,  providing  for  the  payment  of  a  stipulated  sum  to 
the  wife's  mother,  and  certain  sums  in  lump  to  the  children  at 
theV  majority,  and  creating  a  lien  on  real  estate  to  secure  the 
paynent  of  the  same,  exceeds  the  jurisdiction  of  the  court, 
and  mch  provisions  are  void  and  cannot  operate  as  a  family 
settlement.40 

In  Jiich  special  proceedings  as  divorce  and  partition,  the 
court  o?  chancery  must  be  considered  as  of  limited  and  special 
jurisdiction,  concerning  Which  no  such  presumption  is  in- 
dulged is  prevails  in  actions,  at  common  law,  or  ^uits  under 
the  geneial  equitable  jurisdiction.  It  is  a  recognized  doctrine 
that  partW  by  their  consent,  cannot  confer  jurisdiction  over 
a  subject-hatter  upon  courts  from  which  the  law  has  with- 
held it.41 

37.  MinceA  v.    Wayne    Circuit  893;    Peltier  v.   Peltier,  Har.   Ch. 
Judge,  163  MVh.   628,  128  N.  W.  19;    Swiney  v.  Swiney,  107  Mich. 
R.  734.  459,  65  N.  W.  R.  287. 

38.  Bandflelftv.  Bandfield,  117  40.     Maslen    v.    Anderson,    163 
Mich.  80,  75  N.  V.  R.  287;  Maslen  Mich.  477,  128  N.  W.  R.  723. 

v.   Anderson,    16\  Mich.   477,   128  44.     Platt  v.   Stewart,  10  Mich. 

N.  W.  R,  723.    BMy  v.  Bialy,  167  265;   Merrill    v.    Montgomery,    25 

Mich.  559,  133  N.W.  R.  496.  Mich.  73;  Weimer  v.  Bunbury,  30 

39.  Maslen    v.  Vnderson,     163  Mich.  201;  Kirkwood  v.  Hoxie,  95 
Mich.    481,    128    N.\w.     R.     723;  Mich.  62,  54  N.  W.  R.  720,  35  Am. 
Perkins  v.  Perkins,  \R  Mich.  162;  St.   R.    549;    Brown   v.   Fletchers 
Baugh  v.  Baugh,  37Vich.  59,  26  Estate,   146  Mich.   401,  109  N.  W. 
Am.   R.   495;    Peck    i  peck,    66  R.    686;    Brown    on    Jurisdiction, 
Mich.  588,  83  N.  W.  1^893;  Peck  pp.  28,  29;   11  Cyc.  693  and  note, 
v.  Uhl,  66  Mich.  592,  3,  N.  w.  R. 

v      \  -  243 


£.">4N  ACTIONS    FOR    DIVORCE    AND    ANNULMENT 

§348.    Ascertainment  of  Amount. 

In  ascertaining  the  amount  to  be  awarded  as  permanent  ali- 
mony no  arbitrary  rule  can  be  laid  down,  and  the  courts  have 
seldom,  if  ever,  attempted  to  do  so.  Each  case  must  be  de- 
termined according  to  its  own  peculiar  circumstances.  The 
ability  of  the  husband  to  pay,  the  circumstances  surrounding 
and  the  character  of  the  act  constituting  the  grounds  for  the 
divorce,  the  earning  capacity  of  both  husband  and  wife,  the 
number  and  ages  of  the  minor  children,  the  financial  circum- 
stances of  both  husband  and  wife,  the  age  and  physical  con- 
dition of  the  parties,  the  length  of  time  the  parties,  have  been 
married  and  lived  together,  whether  the  property  of  the  hus 
band  has  been  accumulated  by  the  joint  effort  and  labor  o 
the  husband  and  wife,  and  all  of  the  circumstances  surroum- 
ing  each  particular  case,  should  be  ascertained  and  considered 
\^^  by  the  court  whose  duty  it  is  to  make  the  award.42 

§349.    Limitation  of  Power  of  Court  to  Award. 

Within  the  provisions  of  the  statute,  the  power  to  avard 
alimony  in  a  divorce  proceeding,  and  the  extent  of  suca  al- 
lowance, are  largely  in  the  discretion  of  the  court.  Th<  wife 
may  be  awarded  alimony  in  a  decree  of  divorce  granted  on  the 
application  of  the  husband,  for  her  misconduct,  except  where 
the  divorce  is  granted  on  account  of  adultery.43  On  tie  other 
hand,  alimony  may  be  denied  a  wife,  even  upon  a  deciee  of  di- 
vorce obtained  by  her  upon  a  charge  of  cruelty,  where  the  cir- 
cumstances are  such  as  to  make  it  appear  that  ste  has  not 
suffered  to  any  great  extent  from  the  treatment  complained 
of,  and  where  it  further  appears  that  she  has  already  received 
from  her  husband  an  amount  of  property  not  ver*  dispropor- 
tionate to  the  amount  of  alimony  which  might  otlerwise  have 
been  allowed  her.44 

42.    Brasch  v.  Brasch,  168  Mich.  645,  125  N.  W.  R  693;  Robson  v. 

459,  134  N.  W.  R.  450;  Des  Cham-  Robson,  161  Mic).' 293,  126  N.  W. 

plain  v.  Des  Champlain,  164  Mich.  R.  216;   Hornim  v.  Horning,  162 

511,  129   N.  W.   R.   702;    Brandan  Mich.    130,    127  N.    W.     R.     369; 

v.    Brandan,    166    Mich.    462,    131  Ferguson  v.  Frguson,   147   Mich. 

N.    W.    R.    1099;    Baily   v.    Baily,  673,  111  N.  W  R-  175. 

167  Mich.  559,  133  N.  W.  R.  496;  43.     Lofvarier     v.     Lofvander, 

Delor    v.    Delor,    159    Mich.    624,  146  Mich.  37,  109  N.  W.  R.  662. 

124  N.  W.  R.  554;  Lawler  v.  Law-  44.     Steves      v.      Stevens,      49 

If  r.   157   Mich.   107,  121   N.  W.  R.  Mich.   504,   3  N.  W.  R.  835. 
29,4;    Kraft,    v.    Kraft,    160    Mich. 

244 


TllE    TAKING    OF    TEST  I  M  ON  V 

Where  it  appeared  that  a  wife  thirty-two  years  of  age  left 
her  husband,  who  was  forty-eight  years  old,  wit  lion  1  reason- 
able cause  after  thirty-seven  days  of  married  life,  and  notwith- 
standing his  ell'orts  to  please  her,  and  within  a  few  days  there- 
after had  a  miscarriage,  an  allowance  of  one  thousand  dollars 
to  her  as  alimony  from  his  property  worth  seven  thousand 
dollars  was  held  to  be  excessive,  and  the  amount  was  reduced 
to  five  hundred  dollars  and  one  'hundred  dollars  solicitor's 
fees.45 

vj350.     Testimony  -When  and  how  Taken. 

AN  a  general  rule  the  proofs  for  the  purpose  of  determining 
the  proper  award  for  permanent  alimony  should  not  be  taken 
until  it  is  determined  whether  a  divorce  will  be  decreed.48 
Since  the  passage  of  the  Judicature  Act  of  11)15,  however,  in 
all  chancery  cases  the  testimony  is  required  to  be  taken  in 
open  court  as  in  suits  at  law,  unless  the  court  shall  specially 
order  a  reference  to  a  circuit  court  commissioner,  or  other 
person  authorized  by  law  to  administer  oaths,  to  -take  such  tes- 
timony.17 

This  statute  does  not  preclude  the  court  from  making  an 
order  to  lefer  a  chancery  case  to  a  circuit  court  commissioner 
to  take  the  proofs.  The  court  will  entertain  a  special  applica- 
tion to  refer  the  case,  and,  if  a  proper  showing  is  made,  the 
court  may  in  its  discretion  order  such  reference.48 

A  gross  sum  for  alimony  may  be  decreed.  Kxperience  has 
shown  that  a  defendant  sometimes  tries  to  evade  the  payment 
of  an  annuity,  where  he  could  not  or  would  not  he  likely  to 
be  successful  in  evading  the  payment  of  a  gross  sum.  In  cases 
where  there  is  reason  to  apprehend  vexatious  delays  in  pay- 
ment, a  gross  smn  should  be  awarded  in  preference  to  an- 
nuity.49 

45.  Lofvander     v.     Lofvander,  attorney,  shall  enter  into  a  stipu 
146  Mich.  370,  109  N.  W.  R.  662.  lation   to  that  effect,   in   writing. 

46.  Rea   v.    Rea,   53  Mich.    40,  and  file  the  same  with  the  clerk 
18  N.  W.  R.  551.  of  the  circuit  court  of  the  proper 

47.  C.  L.  1915,    (12489);  Cum-  county. 

mins  &  Beechers  J.  A.  §612.  The  48.  Reynolds  v.  Reynolds,  92 
judicature  act  also  provides  fpage  Mich.  104,  52  N.  W.  R.  295;  Briggs 
28)  that  testimony  tq  be  used  in  v.  Brigss,  20  Mich.  46. 
any  circuit  court,  in  chancery  49.  Skillman  v.  Skillman,  18 
may  be  taken  before  a  justice  of  Mich.  458;  Hamilton  v.  Hamil- 
the  peace  or  notary  public,  if  the  ton,  37  Mich.  606;  Taylor  v.  Glad- 
parties  interested,  their  agent  or  win,  40  Mich.  234;  Seibly  v. 


£•">•">  1  ACTIONS    FOR    DIVORCE    AND    ANNULMENT 

§351.    Dower— When  Wife  Entitled  to. 

Under  some  circumstances  a  wife,  upon  obtaining  a  di- 
vorce, is  entitled  to  dower  in  her  husband's  lands  in  the  same 
manner  as  if  he  were  dead.  The  statute  provides  that,  "when 
the  marriage  shall  be  dissolved  by  the  husband  being  sen- 
tenced to  imprisonment  for  life,  and  when  a  divorce  shall  be 
decreed  for  the  cause  of  adultery  committed  by  the  husband, 
or  for  the  misconduct  or  habitual  drunkenness  of  the  hus- 
band, or  on  account  of  his  being  sentenced  to  imprisonment 
for  a  term  of  three  years  or  more,  the  wife  shall  be  entitled  to 
her  dower  in  his  lands  in  the  same  manner  as  if  he  were  dead ; 
but  she  shall  not  be  entitled  to  dower  in  any  other  case  of 
divorce."50 

Where  a  wife  has  been  granted  a  divorce  under  such  cir- 
cumstances that  she  is  entitled  to  her  dower  interest  in  her 
husband's  lands,  and  provision  for  her  support,  the  parties  are 
competent  to  contract  that,  in  consideration  of  her  foregoing 
enforcement  of  her  rights  during  his  lifetime,  he  will  make 
adequate  provision  by  will  for  her  support;  and  a  court  of 
equity  will  entertain  a  bill  for  specific  performance  Jf  such 
contract.51 

Whenever  a  divorced  woman  becomes  entitled  to  dower  in 
her  husband's  lands,  her  right  vests  as  soon  as  the  decree  be- 
comes final.52 

A  divorced  wife's  right  to  dower  in  her  husband's  lands  is 
not  based  upon  the  decree  but  upon  the  statute,  and  therefore 
her  right  to  recover  possession  is  not  barred  in  ten  years,  the 
time  limited  for  bringing  actions  upon  judgments  and  decrees, 
but  only  by  the  fifteen  years  allowed  by  statute  for  the  recov- 
ery of  the%  possession  of  lands.53  The  decree  of  divorce  is  only 
the  evidence  that  the  event  has  taken  place  which  gives  the 
wife  the  right  to  dower,  and  fixes  the  time  when  her  right  of 
action  accrues.  The  statute  of  limitations  in, regard  to  real 
actions  for  the  recovery  of  the  possession  of  land  controls. 

Judge,   105   Mich.   584,   63   N.   W.  52.     Percival     v.     Percival,     56 

R.  528;  Bialy  v.  Bialy,  167  Mich.  Mich.  297,  22  N.  W.  R.  807;  Orth 

559,  133  N.   W.  R.   496;   McClung  v.  Orth,  69  Mich.  158,  37  N.  W.  R. 

v.  McClung,  40  Mich.  498.  67;    Bowles    v.    Hoard,    71    Mich. 

50.  C.  L.  1915,  (11415);  Howell,  150,    39    N.    W.    R.    24;    And    she 
2nd.  Ed.,    §11476;    Jordan  v.   Jor-  can  maintain  ejectment  once  for 
dan,    53   Mich.    550,   19   N.   W.   R.  her  dower,    Percival   v.    Percival, 
180.  56  Mich.  297,  22  N.  W.'R.  807. 

51.  Kundinger    v.    Kundinger,          53.    Moross  v.  Moross,  132  Mich. 
150  Mich.  630,  114  N.  W.  R.  4T>8.       203,  93  N.  W.  R.  247. 

246 


AM>  ITKSO.XAL  KSTATE 


A  -stipulation  in  divorce  proceedings  lliat  the  payment  of  a 
specilied  siini  of  money  and  the  conveyance  of  certain  lands  to 
the  wife  shall  he  in  full  for  all  expenses  and  alimony  against 
the  husband,  will,  release  the  wife's  dower  rights,  although 
there  is  no  express  mention  of  dower  in  such  stipulation,  if 
such  is4he  intention  and  understanding  of  the  parti- 

Under  the  provision  of  the  statute  giving  a  wife  the  right 
to  dower  in  the  lands  of  her  husband  who  has  Itcen  sentenced 
to  imprisonment  for  life,  her  right  vests  as  soon  as  the  sen- 
tence is  passed,  and  she  may  have  such  dower  assigned  at 
once,  or  bring  an  action  of  ejectment  for  its  recovery,  with- 
out procuring  a  decree  of  divorce.  This  is  because  the  mar- 
riage is  absolutely  dissolved  by  the  sentence  of  the  husband 
to  imprisonment  for  life,  and  the  husband's  subsequent  par- 
don will  not  restore  him  to  his  conjugal  rights/-'1  If,  in  such 
a  case,  the  husband  should  appeal  from  the  judgment  of  life 
sentence,  the  wife's  right  to  dower  would  probably  be  sus- 
pended until  such  time,  as  the  judgment  or  sentence  became 
absolute;  and,  if  it  were  reversed  and  set  aside,  an  acquittal 
of  the  charge  afterwards  would  probably  restore  to  the  parties 
all  their  conjugal  rights,  although  a  pardon  would  not. 

§352.    Lien  on  Real  and  Personal  Estate. 

The  statute  provides  that  "in  all  cases  where  alimony  or 
allowances  for  the  support  and  education  of  minor  children 
shall  be  decreed  to  the  wife,  the  amount  thereof  shall  consti- 
tute a  lieu  upon  such  of  the  real  and  personal  estate  of  the 
husband  as  the  court  by  its  decree  shall  direct,  and  in  default 
of  payment  of  the  amount  so  decreed,  the  court  may  decree 
the  sale  of  the  property  against  which  such  lien  is  decreed,  in 
the  same  manner  and  upon  like  notice  as  in  suits  for  the  fore- 
closure of  mortgage  liens. 

Prior  to  1877,  the  statute  did  not  authorize  the  court  to  «le 
clare  a  lien  on  the.  lands  of  the  husband  to  secure  permanent 
alimony  to  be  paid  io  the  wife.  A  court  of  equity  has  no  in- 
herent power  to  create  liens  on  real  estate,  and  has  no  general 
power,  independent  of  statute,  to  declare  alimony  to  be  a  spe- 
cific charge  upon  lands,  or  to  direct  such  lands  to  be  sold  in 

54.     McKelvey  v.  McKelvey.  112          55.     Q.  L.  1915,  (11396);  Howell. 
Mich.  274.  70  N.  W.  R.  582,  Owen       2nd.  Ed..  511457. 
v.    Yale,   75   Mich.   256,   42  N.   W.  56.     C.  L.  1915,  (11416)  ;  Howell. 

R.  817;   Adams  v.   Story,  135  111.       2nd.  Ed.  §11477. 
.  448,   25  Am.   St.  R.  392. 

247 


§357  ACTIONS    FOR   DIVORCE    AND    ANNULMENT 

default  of  payment.57  Jurisdiction  over  alimony  being  statu- 
tory, it  cannot  be  extended  beyond  the  statutory  authority, 
which,  prior  to  1877,  allowed  only  a  sequestration  of  rents  and 
profits  of  realty  where  the  defendant  had  be.en  ordered  to  give 
security  and  had  neglected  or  refused  to  do  so.58  In  1877, 
however,  the  legislature,  by  Act  No.  44,  so  amended  the  former 
statute  as  to  make  an  allowance  for  alimony  decreed  to  the 
wife  for  the  support  and  education  of  the  children  of  the  mar- 
riage, a  lien  upon  such  of  the  real  and  personal  estate  of  the 
husband  as  the  court  by  its  decree  directs.59 

§357.    Enforcement  of  Lien. 

When  an  award  of  alimony  becomes  a  lien  upon  the  real 
and  personal  estate  of  the  husband,  andjihe  award  is  not  paid, 
the  statute  provides  that  the  court  may  decree  the  sale  of  the 
property  against  which  such  lien  is  decreed' in  the  same  man- 
ner and  upon  like  notice  as  in  suits  for  the  foreclosure  of  mort- 
gage liens.60  In  such  cases  the  decree  for  divorce  and  alimony 
should  designate  the  particular  property  of  the  husband  which 
is  to  be  subjected  to  the  lien.  The  language  of  the  statute 
seems  to  indicate  that  the  court  may  decree  the  lien  against 
the  whole  or  any  part  of  the  husband's  real  or  personal  prop- 
erty. The  statute  creates  the  lien,  but  the  court  designates 
against  what  property  of  the  husband  it  shall  be  enforced.  A 
sale  of  such  property,  however,  cannot  lawfully  be  made  un- 
der such  decree,  without  some  further  order  adjudging  the 
defendant  to  be  in  default,  and  ascertaining  the  amount.61 
The  provisions  of  the  decree  awarding  alimony  and  the  desig- 
nation of  the  property  of  the  husband  against  which  a  lien 
may  be  enforced  are  the  sole  origin  of  the  responsibility  of  the 
husband.  The  object  of  these  provisions  is  to  create  a  debt 
payable  in  the  future,  and  to  place  that  debt  on  a  footing  sim- 
ilar to  that  of  a  mortgage  on  the  property  designated  by  the 
decree  to  be  subject  to  the  lien.  The  decree  cannot  adjudicate 
in  advance  for  future  defaults.  No  court,  either  of  law  or  of 

57.  Perkins     v.     Perkins,     16       P.   A.    1897,   Act   No.   197;    C.   L. 
Mich.  161.  1915,    (11416) ;    Howell,   2nd.    Ed. 

58.  Bennett     v.      Nichols,     12       §11477. 

Mich.   22;    Story  v.   Story,  Walk.  60.     C.L.  1915,  (11416) ;  Howell, 

Ch.   421;    Peltier  v.   Peltier,  Har.  2nd.  §11477. 

Ch.  19.  61.     Perkins     v.     Perkins,     16 

59.  P.    A.    1877,    Act    No.    44;  Mich.  165. 

"248 


SALi:    oi:    1'IVlSloN    (»K    rKol'KUM 


equity.  can  lawfully  direct  judgment  to  j:o  against  a  ]>arty,  or 
against   his  property.  until   liis  default   lias  IMMMI   made  out. 

The  determination  of  the  amount  of  any  debt  actually  due, 
which  is  to  st;md  as  the  basis  of  a  judicial  sale  or  execution,  is 
a  judicial  act  :  and  a  hearing  must  precede  the  condemna- 
tion.62 

The  court  has  power  under  the  statute  to  make  the  award 
against  the  husband,  in  a  divorce  proceedings,  for.  the  support 
of  the  children,  a  charge  upon  his  property,  and  alter  it  from 
time  to  time  in  the  interests  of  justice,  and  on  the  death  of  the 
husband  will  fix  the  period  for  which  the  payments  must  con- 
tinue, calculate  and  determine  their  present  worth,  and  make 
the  MI  ni  a  lien  upon  his  property,  with  priority  over  all  other 
claims  of  his  widow,  heirs,  and  next  of  kin.  except  rights  of 
dower.  The  provision  in  a  decree  of  divorce  against  the  hus- 
band for  the  payment  of  a  certain  sum  monthly,  until  the  fur- 
ther order  of  the  court,  for  the  support  of  children,  is  not  dis 
charged  by  the  husband's  death.83 

§358.     Execution  to  Collect—  Sale  or  Division  of  Property. 

The  same  section  of  the  statute  which  authorizes  a  lien  on 
the  husband's  real  and  personal  property  to  secure  the  pay- 
ment of  alimony  awarded  to  the  wife  provides  that  "the  court 
may  award  execution  for  the  collection  of  the  same,  or  the 
court  may  sequester  the  real  and  personal  estate  of  the  hus- 
band and  may  appoint  a  receiver  thereof,  and  cause  such  per- 
sonal estate  and  the  rents  and  profits  of  such  real  estate  to  be 
applied  to  the  payment  thereof,  or  the  court  may  in  lieu  of  a 
money  allowance  decree  such  a.  division  between  the  husband 
and  wife  of  the  real  and  personal  estate  of  the  husband  or  of 
the  husband  and  wife  by  joint  ownership  or  right  as  he  shall 
deem  to  be  equitable  and  just."94  This  section  applies  to  per- 
manent alimony  only.  An  execution  cannot  be  awarded  under 
this  section  to  collect  temporary  alimony.*5 

Where  a  decree,  giving  the  wife  one-third  of  the  husband's 
property  for  alimony,  permitted  him  to  discharge  it  by  setting 

off  to  her  ten  thousand  dollars  in  land,  it  was  held  that  the 

i 

62.  Perkins     v.      Perkins,     16      son,   56   Mich.    185,   22   N.   W.   R. 
Mich.  165.  264:   Potts  v.  Potts,  68  Mich.  492, 

63.  Creyts  v.  Creyts,  143  Mich.       36  N.  W.  R.  240. 

375,  106  N.  W.  R.  1111.  65.     Palmer      v.      Palmer,      45 

64.  C.  L.  1915,  (11416);  Howell,       Mich.   150,  7  N.  W.  R.  760. 
2nd.  Ed..   5H477;    Edison   v.  Edi- 

249 


§358  ACTIONS    FOR    DIVORCE    AND    ANNULMENT 

land  should  be  estimated  to  her  according'  to  the  value  as 
shown  by  the  proofs  in  the  case,  and  not  by  subsequent  en- 
hanced valuation.66 

Under  this  section,  on  granting  a  decree  of  divorce,  real  es- 
tate held  by  the  parties  as  tenants  by  entireties  may  be  di- 
vided.67 

The  court  may  also  award  a  sum  in  gross,  which  becomes 
payable  presently,  or  the  court  may  sequester  the  real  and  per- 
sonal estate  of  the  husband,  and  appoint  a  receiver  thereof, 
and  cause  the  personal  estate  and  the  rents  and  profits  of  the 
real  estate  to  be  applied  to  the  payment  of  alimony. 

And  the  better  practice  is  for  the  court  to  determine  in  the 
.first  instance  the  right  to  decree  a  divorce,  and  to  reserve  the 
question  of  alimony  for  subsequent  adjudication.68 

Where  a  decree  of  divorce  reserves  for  subsequent  consider- 
ation and  adjudication  the  question  of  the  amount  of  alimony 
to  be  awarded  the  wife,  and  the  husband  dies  pending  such 
adjudication,  the  court  is  not  dusted  of  jurisdiction  to  award 
permanent  alimony  under  the  provisions  of  the  statute  author- 
izing the  court  to  award  a  gross  sum  as  permanent  alimony. 
The  statute  seems  to  have  changed  or  modified  the  general 
rule  that  the  death  of  either  party  to  a  divorce  suit  pendente 
lite  abates  the  suit,  and  that  a  proceeding  to  enforce  alimony, 
at  common  law,  abates  on  the  death  of  either  party. 

The  reason  of  the  general  rule  referred  to,  in  the  first  in- 
stance, is  that  the  purpose  for  which  the  proceeding  is  pend- 
ing— namely,  the  dissolution  of  the  marriage — is  accom- 
plished, arid,  in  the  second  instance,  that  at  common  laV  ali- 
mony consisting,  as  it  does,  of  provision  for  the  support  of  the 
wife,  on  a  divorce  from  bed  and  board,  by  means  of  an  allow- 
ance to  be  paid  by  the  husband,  the  proceeding  to  enforce  it 
relates  to  conditions  which  exist  only  during  the  life  of  the 
two. 

But  the  statute  has  changed  ^  the  general  common  law  rule 
by  authorizing  an  award  of  money  in  gross,  which  becomes 

66.  McClung    v,    McClung,    42  Carnahan  v.  Carnahan,  143  Mich. 
Mich.  53,  3  N.  W.  R.  250.  390,  107  N.  W.  R.  73. 

67.  Jeske   v:   Jeske,   147  Mich.  68.    Rea  v.   Rea,    53   Mich.    40, 
367,  110  N.  W.  R.  1060;  Brasch  v.  18   N.  W.  R.   551;    Seibly  v.   Per- 
Brasch,  168  Mich.  461,  134  N.  W.  son,    Circuit    Judge,     105     Mich. 
R.    450.     As   to   ascertainment   of  584,   63    N.   W.   R.   528;    Miller  v. 
husband's    property    and    division  Clark,  23  Ind.  370;  Stewart,  Mar. 
between    husband    and    wife    see;  &  Div.,  376. 

250 


SI'l'^TO  FORECLOSE  LIKX 

presently  payable,  or  ;i  division  of  the  property.  If  it  results 
that,  the  death  of  the  husband,  after  a  decree  of  divorce  has 
been  granted,  ami  pending  the  determination  of  the  question 
of  alimony,  ousts  tho  court  of  jurisdiction  to  award  perm  a- 
in-lit  alimony  to  the  wife,  it  follows  that  in  every  case  where 
a  decree  is  made  dissolving  the  marriage  and  reserving  the 
consideration  and  determination  of  the  question  of  alimony 
for  subsequent  adjudication,  there  must  bo  a  period  of  greater 
or  less  duration,  during  which  The  wife  is  at  the  risk  of  losing 
the  interest  in  her  husband's  estate  which  she  would  have  un- 
der the  statute  of  distributions  but  for  the  divorce.  Under 
such  conditions  the  wife  is  placed  in  a  position  by  the  decree 
of  divorce  which  precludes  her  from  sharing  as  a  widow  in 
her  husband's  estate,  if  she  is  precluded  by  his  death  from  en- 
forcing her  right  to  alimony.00 

In  a  proceeding  for  an  award  of  alimony  against  such  de- 
ceased husband's  estate,  where  he  dies  after  the  decree  dissolv- 
ing the  marriage  has  been  entered  and  before  the  adjudication 
of  the  question  of  alimony  reserved  for  further  order  and  di- 
rection, the  heirs  and  other  personal  representatives  of  the  de- 
ceased husband  must  be  made  parti* 

§359.     Suit  to  Foreclose  Lien. 

Where  a  decree  for  alimony  in  a  gross  sum  provides  it  shall 
be  a  lien  on  real  estate,  a  suit  to  foreclose  such  lieu  may  be 
maintained  in  case  of  default  of  payment  according  to  the 
terms  of  the  decree.  If  the  decree  is -made  a  lion  on  land  sit- 
uated in  another  county  than  the  one  in  which  the  decree  was 
rendered,  the  suit  to  foreclose  the  lien  must  be  instituted  in 
the  county  where  the  land  or  some  part  of  it  is  situated.  The 
statute  pro\  ides  that  in  default  of  payment  of  tho  amount  of 
alimony  decreed,  the  court  may  decree  the  sale  of  the  prop- 
erty chared  with  the  lien  "in  the  same  manner  and  upon  like 
notice  as  in  suits  for  the  foreclosure  of  mortgage  liens."7  The 
provision  of  the  statute  relating  to  the  foreclosure  of  mort- 
gage liens  provides  that  "all  bills  for  the  foreclosure  or  satis 
faction  of  mortgages  shall  bo  tiled  in  the  circuit  court  in  chau 

69.  Seibly    v.    Ingham    Circuit      .^HRP,  105  Mich.  587,  63  N.  W.  R. 
Judge,  105  Mich.  584,  63  N.  W.  R.       528. 

528.  71.     C.  L.  1915,  (11416)  :  Howell. 

70.  Shafer  v.  Shafer,  30  Mich.       _'nd.  Ed.  811477       • 
163;    Seibley  v.     Ingham    Circuit 

251 


§359  ACTIONS  FOR  DIVORCE  AND  ANNULMENT 

eery  of  the  county  where  the  mortgaged  premises,  or  any  part 
thereof,  are  situated."72 

A  decree  for  alimony  in  a  fixed  sum  is  generally  held  to  be 
a  judgment  of  record  and  will  be  received  by  other  courts  as 
such.  Such  a  decree  rendered  in  any  state  of  the  United 
States  may  be  carried  into  judgment  in  any  other  state.73  But 
when  suit  is  brought  in  one  state  upon  a  decree  for  a  fixed 
sum  of  alimony  rendered  in  another  state,  the  measure  of  re- 
covery must  be  the  amount  due  on  the  decree  at  the- time  the 
suit  is  instituted.  This  is  because  the  court  which  rendered 
the  decree  has  power  to  revise  or  alter  such  decree  as  to  the 
amount,  from  time  to  time,  on  the  application  of  either 
party.74 

And  the  decree  awarding  alimony  must  have  been  rendered 
by  a  court  having  jurisdiction  of  the, parties  and  of  the  sub- 
ject matter,  or  it  will  not  be  sufficient  to  lay  the  foundation 
for  a  personal  judgment  in  another  state.  A  decree  which  is 
void  for  want  of  jurisdiction  will  not  support  a  judgment  in 
personam  awarding  alimony.70  While  notice  by  publication 
in  accordance  with  the  laws  of  the  state  is  sufficient  to  give 
the  court  jurisdiction  to  dissolve  the  marriage,  such  substi- 
tuted service  is  not  sufficient  to  lay  the  foundation  for  a  per- 
sonal judgment  for  alimony.76 

An  award  of  alimony  is  a  valid  claim  against  the  estate  of 
the  claimant's  divorced  husband,  deceased,  for  the  time  elaps- 
ing between  the  date  of  the  decree  and  the  subsequent  remar- 
riage of  the  claimant,  where  the  decedent  in  his  life-time  took 
no  steps  toward  a  modification  of  the  award.77 

72.  C.  L.  1915,    (12676);    Cum-  v.  Woodworth,  5  Johns.  27,  4  Am. 
mins    &   Beecher's    Mich.    Judica-  Dec.  321;   People  v.  Baker,  76  N. 
ture  Act,   §799;    Howell,  2nd.  Ed.  Y.   78,   32   Am.   R.   274;    Pennoyer 
§12033;     Ulman     v.     Ulman,     148  v.   Neff,   95   U.    S.   714,   24  L.    Ed. 
Mich.   353,    111   N.  W.   R.   1072.  5G5;      Cooley     on     Constitutional 

73.  Lynde  v.  Lynde,  162  N.  Y.  Limitation,  405;    St.  Clair  v.  Cox, 
405,    48    L.-R.   A.    679,    181   U.    S.  106   U.    S.   350,   27   L.   Ed.,   222,    1 
183,    45    L.    Ed.    810;    Barber    v.  Sup.    Ct.    R.     354;     Harkness     v. 
Barber,  21  How.  U.  S.  582,  16  L.  Hyde,  98  U.  S.  476,  25  L.  Ed.,  237; 
Ed.  226.  Owens   v.   Henry,    161   U.    S.    642, 

74.  Lynde  v.  Lynde,  181  U.  S.  40  L.  Ed.  837,  16  Sup.  Ct.  R.  693; 
183,  45  L.   Ed.  Book  810.  Henrietta  Mining  and  Milling  Co. 

75.  Erkenbrach  v.  Erkenbrach,  v.   Johnson,  173  IT.   S.   221,   43  L. 
96   N.   Y.    456;    Signey   v.   Signey,  Ed.  675,  19  Sup.  Ct.  R.  402. 

127  N.  Y.  408,  28  N.  E.  R.  405.  77.     Martin   v.   Thison's   Estate, 

76.  Potter  v.  Ogden,  136  N.  Y.       153  Mich.  516,  116  N.  W.  R.  1013, 
344,    33    N.    E.    R.    331;    Kilburn       18  L.  R.  A.   (N.  S.)   257. 

25"2 


fiHKT     MAY     AI.TKU    I'KriaiK  §360 

In  Massachusetts   it    is  held   that    as  alimony  out  of  a  hus- 
band's property   is  a   provision  for  the  support  of  the  wife  by 
him,  the  obligation  to  pay  it   in  the  future  necessarily  e< 
with  the  death  of  the  liusband;  but  amounts  already  due  at 
the  time  of  his  death  arc  in  the  nature  of  a  debt  then  existing, ' 
and  arc  payable  out  of  his  estate.78 

In  Wisconsin  it  has  been  held  that  a  divorced  wife,  after 
the  death  of  her  husband,  can  enforce  payment  by  his  admin- 
istrator of  arrearage  of  alimony  due  her,  only  by  proceedings 
as  for  a  claim  against  the  decedent's  estate  in  the  manner  pre- 
scribed by  the  statutes  pertaining  thereto;  and  that  a  motion 
in  the  divorce  suit  that  the  administrator  be  ordered  to  pay 
the  judgment  for  alimony  is  ineffectual.70 

But  during  the  life  of  both  parties,  a  decree  for  alimony, 
though  awarded  in  a  gross  sum,  and  the  time  of  payment  fixed 
by  the  decree,  is  not  such  a  debt  as  will  be  discharged  by  an 
adjudication  in  bankruptcy,  or  that  may  be  sued  upon  in  a 
court  of  law.80 

§360.     Court  may  Alter  Decree. 

The  statute  provides  that  "after  a  decree  for  alimony  or 
other  allowance  for  the  wife  and  children,  or  either  of  them, 
and  also  after  a  decree  for  the  appointment  of  trustees  to  re- 
ceive and  hold  any  property  for  the  use  of  the  wife  and  chil- 
dren as  before  provided,  the  court  may,  from  time  to  time,  on 
the  petition  of  either  of  the  parties,  revise  and  alter  such  de- 
cree respecting  the  amount  of  such  alimony  or  allowance  and 
the  payment  thereof,  and  also  respecting  the  appropriation 
and  payment  of  the  principal  and  income  of  the  property  so 
held  in  trust,  and  may  make  any  decree  respecting  any  of  the 
said  matters  which  such  court  might  have  made  in  the  orig- 
inal suit."81 

This  statute  has  been  construed  as  authorizing  the  change 
only  on  new  facts  thereafter  transpiring,  which  are  of  such  a 

78.  Knapp  V.  Knapp,  134  Mass.  Allen    v.   Allen,    100    Mass.    373; 
353.  Knapp  v.  Knapp,  134  Mass.   353; 

79.  Guenthers  Appeal,  40  Wis.  Barber  v.  Barber,  2   Pin.    (Wis.) 
115.  297;   Kempster  v.  Evans,  81  Wis. 

80.  Nixon      v.      Wright,       146  247,  51  N.  W.  R.  327,  15  L.  R.  A. 
Mich.  231,   109  N.  W.   R.    274,   10  ::91. 

Am.  &  Eng.  Ann.  Cas.  547;   Post          81.     C.  L.  1915,  (11417) ;  Howell, 
v.    Neafle,   3    Cains,    (N.   Y.)    34;       2nd.  Ed.  §11478. 

253 


§300  ACTIONS    FOR    DIVORCE    AND    ANNULMENT 

character  as  to  make  the  change  necessary  to  snit  such  new 
state  of  facts. s- 

A  decree  awarding  the  custody  of  a  child  to  its  mother,  and 
a  weekly  allowance  for  its  support,  will  not  be  subsequently 
modified  "upon  a  showing  of  facts  which  were  known  to  the 
petitioning  party  to  have  existed  at  the  time  the  decree  was 
rendered.  Notwithstanding  that  the  amount  of  alimony  fixed 
in  the  decree  is  determined  by  agreement  of  the  parties  at  the 
time  the  decree  is  signed,  the  court  afterwards  may  modify 
the  decree  upon  petition  of  one  of  the  parties  showing  such  a 
change  of  circumstances  as  makes  such  modification  pr  altera- 
tion necessai-y.  The  statute  was  enacted  for  the  benefit  of  the 
children  as  well  as  the  parents,  and  any  agreement  which  the 
parents  may  make  •  in  the  settlement  of  alimony  does  not  bind 
the  conscience  of  a  court  of  equity  as  to  what  is  for  the  wel- 
fare of  the  children.83 

Other  alleged  misconduct  and  defenses  which  existed  at  the 
time  of  the  decree,  and  might  have  been  shown,  constitute  no 
valid  reason  for  modification  of  a  decree  as  to  alimony.84 

A  court  of  equity  has  jurisdiction  to  modify  a  decree  of  di- 
vorce awarding  alimony  in  installments,  after  the  death  of  the 
defendant  husband,  so  as  to  grant  a  gross  sum  out  of  the  es- 
tate of  the  deceased  in  lieu  thereof.85 

Deduction  of  alimony  is  not  warranted  by  reason  of  remar- 
riage of  the  defendant  husband,  or  the  fact  that  the  wife  has 
alienated  his  daughter's  affection  from  him.86  • 

If  a  decree  of  divorce  does  not  provide  for  alimony,  and  the 
question  of  alimony  is  not  reserved  in  such  decree  for  fur- 

82.  Perkins     v.     Perkins,     12  Smith  v.  Waalkes,   109  Mich.   16, 
Mich.  450;   Chandler  v.  Chandler,  66  N.  W.  R.  679;  Miller  v.  Miller, 
24  Mich.  176.  64  Me.  484;    Maslen  v.  Anderson, 

83.  Camp   v.    Camp,    158  Mich.  163  Mich.  477,  128  N.  W.  R.  723; 
221,    122    N.   W.    R.    521;    Aldrich  Brown   v.    Brown,   135  Mich.   141, 
v.  Aldrich,  166  Mich.  248,  131  N.  97  N.  W.  R.  396;   A  monthly  al- 
W.  R.  542.  lowance  to  a  wife  for  the  support 

84.  Camp.   v.  Camp,  158  Mich.  and    maintenance    of    a    child    is 
221,  122  N.  W.  R.  521.  "alimony"  within  the  meaning  of 

85.  Pingree     v.     Pingree,     170  Act   No.   830,  P.  A.   1899,  author- 
Mich.    36,    135    N.    W.    R.    923;  izing  the  enforcement  of  a  decree 
Adams   v.    Seibly,   115   Mich.   402,  for    alimony    through     imprison- 
73  N.  W.  R.  377;  Creyts  v.  Creyts,  ment    for    contempt.      Brown     v. 
143  Mich.  375,  106  N.  W.  R.  1111;  Brown,   135   Mich.   141,  97   N.   W. 
Shafer   v.    Shafer,    30   Mich.    163;  R.  396. 

Seibly  v.   Ingham   Circuit   Judge,          86.     Smith  v.  Smith,  139  Mich. 
105  Mich.   583,   63  N.  W.   R.   528;        133,   102   N.  W.  R.  631. 
/  f 

254 


\\llo     .MAY     Fll.i:    KII.I.  J.'Hio 

Iher    directions.    ;in    allowance    for    alimony    cannot    afterwards 

be  made/7 

$361.     Legitimacy    of    Children    in    Certain    Cases  -Adultery 
Former  Spouse  Living    Non-Age. 

A  divorce  for  iln*  c;ni-r  of  adultery  commit tod  by  the  wife 
doe-*  not  ailed  tin-  legitimacy  of  the  children  of  the  marriage, 
and  the  legitimacy  of  such  children,  if  questioned,  may  be  dej- 
termined  by  the  court  upon  the  proofs  heard  in  the  cause. 

Tn  every  case  the  legitimacy  of  all  children  begotten  before 
the  commencement  of  the  suit  must  lie  presumed  until  the  con- 
trary is  shown.88 

Whenever  a  marriage  is  dissolved  on  account  of  a  prior  mar- 
riage of'eiiher  party,  and  it  shall  appear  that  the  second  mar- 
riage \vas  contracted  in  good  faith,  and  with  the  full  belief  of 
the  parties  that  the  former  wife  or  husband  was  dea$,  that 
fact  must  he  stated  in  the  decree  of  divorce  or  annulment; 
and  the  Nsne  of  such  second  marriage,  born  or  begotten  be- 
fore the  commencement  of  the  suit,  will  be  deemed  to  be  the 
legitimate  issue  of  the  parent  who,  at  the  time  of  the  mar 
ria^e.  was  capable  of  contracting.89 

I  pon  the  dissolution  of  a  marriage  on  account  of  non-age, 
in-anity  or  idiocy  of  either  party,  the  issue  of  such  marriage 
is  deemed  to  be  in  all  respects  the  legitimate  issue  of  the 
parent  who,  at  the  time  of  the  marriage,  was  capable  of  con- 
tracting.90 

§362.     Co-habitation  after  Divorce    How  Punished. 

If.  after  being  divorced,  the  parties  cohabit  together  with- 
out being  remarried,  they  are  liable  to  the  penalties  and  pun- 
ishment provided  by  law  against  adultery.91  This  provision 
of  the  statute  does  not  make  the  cohahitating  parties  guilty  of 
the  crime  of  adultery,  but  provides  that  the  punishment  for 
such  cohabitation  shall  be  the  same  as  the  law  prescribes  for 
adultery.  /  i 

• 

§363.    Who  may  File  Bill  tp  Annul  Marriage — In  Case  of  Non- 
Age — Idiocy  or  Lunacy. 

A  bill  to  annul  a  marriage  on  the  ground  that  one  of  the 

87.  MoroBs     v.      Moross,      129       2nd.  Ed.,,  911481. 

Mich.  27.  87  N.  W.  R.  1035.  90.     C.  L.  '97,   (11419) ;  Howell, 

88.  C.  L.  1915,  (11418) ;  Howell,      2nd.  Ed..  $11480. 

2nd.  Ed.  J11479.  91.     C.  L.  1915,  (11421) ;  Howell, 

89.  C.  L.  1915.  (11420);  Howell,       2nd.  Ed.  §11482. 

255 


§364  ACTIONS    FOR    DIVORCE    AND    ANNULMENT 

parties  was  under  the  age  of  legal  consent  at  the  time  of  the 
marriage  was  celebrated,  may  be  exhibited  by  the  parent  or 
guardian  entitled  to  the  custody  of  such  miiior ;  or  by  the  next 
friend  of  such  minor ;  but  in  no  case  can  such  marriage  be  an- 
nulled on  the  application  of  the  party  to  the  marriage  who 
was  of  the  legal  age  of  consent  at  the  time  of  the  marriage, 
nor  when  it  shall  be  made  to  appear  that  the  parties,  after 
they  had  attained  the  age  of  legal  consent,  had  freely  and  vol- 
untarily cohabited  as  husband  and  wife.92 

A  bill  to  annul  a  marriage  on  the  ground  of  insanity  or 
idiocy  may  be  exhibited  by  any  person  admitted  by  the  court 
to  prosecute  as  the'  next  friend  of  such  idiot  or  lunatic.93  ,The 
marriage  of  a  lunatic  may  also  be  declared  void  upon  the  ap- 
plication of  the  lunatic,  after  tho  restoration  of  reason;  but 
in  such  case  no  sentence  of  annulment  can  be  pronounced  by 
the  court,  if  it  shall  appear  that  the  parties  freely  cohabited 
as  husband  and  wife  after  the  lunatic  was  restored  to  a  sound 
mind.04 ' 

§364.    Annulment — Force  or  Fraud — Denied  When — Custody  of 
Children. 

A  marriage  cannot  be  annulled  on  the  ground  of  force  or 
fraud  in  the  procurement  of  the  marriage  if  it  appears  that, 
at  any  time  prior  to  the  commencement  of  the  suit,  there  was 
a  voluntary  cohabitation  of  the  parties  as  husband  and  wife.95 

When  a  marriage  is  dissolved  or  annulled  on  the  ground  of 
force  or  fraud  in  its  procurement,  the  custody  of  the  children 
of  such  marriage  will  be  given  to  the  innocent  parent,  and  the 
court  may  also  decree  a  provision  for  their  support  and  educa- 
tion out  of  the  estate  and  property  of  the  guilty  party.96 

§365.    Physical  Incapacity — Limitations. 

A  suit  to  annul  a  marriage  on  the  ground  of  the  physical 
incapacity  of  one  of  the  parties  at  the  time  of  the  marriage 
can  be  maintained  only  by  the  injured  party,  against  the 
party  whose  incapacity  is  alleged,  and  must  in  all  cases  be 

92.  C.  L.  1915,  (11422) ;  Howell,  95.     C.  L.  1915,  (11425) ;  Howell, 
2nd.  Ed.,  §11483;  People  v.  Slack,  2nd.  Ed.,  §11486;   Leavitt  v.  Lea 
15  Mich.  201.  vitt,    13    Mich.    457;     Sissung     v. 

93.  C.  L.  1915,  (11423);  Howell,  Sissung,    65   Mich.   179,   31  N.   W. 
2nd.  Ed.,   §11484.  R.  770. 

94.  C.  L.  1915,  (11424) ;  Howell,  96.     C.  L.  1915,  (11426) ;  Howell, 
2nd.  Ed.  §11485.  2nd.  Ed.,  §11487. 

256 


i-oritT    .MAY    MMNY    KMMIMT 

brought   within   two  years  from   flic  time  of  the  solemnization 
of  the  marriage.07 

§366.     Admissions  and  Confessions^  Testimony  of  Parties. 

]So  decree  of  divorce  can  be  granted  upon  the  declarations. 
Admissions  or  confessions  of  the  parties  alone,  and  in  all  cases 
the  court  must  require  other  evidence  of  the  facts  alleged  in 
the  bill,  but  either  may,  if  he  or  she  elects,  testify  in  relation 
to  such  facts;  but  the  testimony  of  cither  party  to  the  action 
can  be  taken  only  in  open  court,  and  the  testimony  of  the 
parties  cannot  be  received  in  support  or  in  defense  of  a  charge 
of  adultery.88  ''Decrees  of  divorce  by  consent  will  not  be  en- 
tered, cither  in  the  circuit  or  Sii|>renic  Court.  The  court  mn>t 
look  into  the  testimony  ami  be  satisfied  that  a  legal  cause  for 
divorce  exists." 

This  statute  refers  i<,  confessions  and  admissions,  not  to  the 
testimony  of  a  party  as  a  witness.  The  circuit  court  has 
authority  to  require  the  defendant  in  a  divorce  case  to  testify.1 
If  the  testimony  is  clear  and  undisputed  a  decree  of  divorce 
may  be  granted  upon  the  evidence  of  a  complainant  alone,  but 
\\hen  the  court  is  compelled  to  rest  a  decree  upon  the  testi- 
mony of  the  complainant  it  will  only  grant  relief  when  the 
case  is  very  clearly  established.  There  is  no  arbitrary  fixed 
rule  which  prevents  granting  a  decree  upon  the  testimony  of 
the  complainant  alone,  if  the  testimony  of  such  complainant  is 
of  such  a  character  as  to  satisfy  the  conscience  of  the  court 
that  the  cause  for  divorce  alleged  in  the  bill  is  established.2 

§367.     Court  may  Deny  Relief  in  Certain  Cases  of  Adultery. 

"In  any  suit  brought  for  divorce  on  the  ground  of  adultery. 
although  the  fact  of  adultery  be  established,  the  court  may 
deny  a  divorce  in  the  following  cases : 

l-'irxt,  when  the  offense  shall  appear  to  have  been  committed 
by  the  procurement  or  with  the  connivance  of  the  complain 
an!  : 

97.  C.  L.  1915.  (11427);  Howell,  1:5  Mich.  452;  Dawson  v.  Dawson, 
2nd.  Ed.,  §11488.  18  Mich.  335. 

98.  C.  L.  1915,  (11428) ;  Howell,          1.     Rosecrance     v.     Rosecrance. 
2nd  Ed.   §11489;    Sawyer  v.   Saw-  127  Mich.   322,  86   N.  W.   R.   800. 
yer,  Wai.  Ch.  52.  2.     Murphy     v.     Murphy,     150 

99.  Robinson    v.    Robinson,   16  Mich.  97,  113  N.  W.  R.  583;  Rose- 
Mich.    79;    Emmons    v.    Emmons.  r ranee    v.    Rosecrance,    12    Mich. 
Wai.  Ch.  532;   Leavitt  v.  Leavitt,  ?22;    86  N.  W.  R.  800. 

257 


§368  ACTIONS    FOR    DIVORCE    AND    ANNULMENT 

Second,  when  the  offense  charged  shall  have  been  forgiven 
by  the  injured  party,  and  such  forgiveness  be  proved  by  ex- 
press proof,  or  by  the  voluntary  cohabitation  of  the  parties 
with  knowledge  of  the  offense; 

Third,  when  there  shall  have  been  no  express  forgiveness, 
and  no  voluntary  cohabitation  of  the  parties,  but  the  suit 
shall  not  have  been  brought  within  five  years  after  the  discov- 
ery by  the  complainant  of  the  offense  charged."3 

Where  the  offense  of  adultery  is  committed  by  a  husband  or 
wife  by  the  procurement  or  connivance  of  the  other  spouse,  no 
divorce  ought  to  be  granted.  A  plaintiff  in  a  divorce  case, 
who  by  procurement  or  connivance  has  caused  the  defendant 
to. commit  the  offense,  cannot  be  said  to  come  before  thff  court 
with  clean  hands.  The  equitable  maxim  that  one  who  seeks 
relief  from  a  court  of  equity  must  come  before  the  court  with 
clean  hands  is  as  applicable  to  divorce  cases  as  any  other.  Di- 
vorce laws  are  enacted  for  the  relief  of  the  innocent,  not  the 
guilty.4 

§368.    Forgiveness  and  Condonation. 

It  is  a  rule  of  general  application  that  forgiveness  by  the 
injured  party  of  an  offense  which  otherwise  would  constitute 
legal  ground  for  divorce,  will  condone  such  offense,  and  such 
condonation  may  be  either  express,  or  implied  from  the  acts 
and  conduct  of  the  parties. 

By  a  reconciliation  of  the  parties  and  the  resumption  of 
marriage  relations  after  the  offense  is  committed,  the  acts  re- 
lied on  in  the  bill  may  be  treated  as  condoned.  Condonation 
may  be  defined  as  a  parelon  or  forgiveness  of  a  past  wrong  or 
fault  which  has  occasioned  a  breach  of  some  duty  or  obliga- 
tion. "It  is  not  an  absolute  term  which  can  be  applied  alike  to 
all  cases  and  all  circumstances.  Its  application  wiil  vary  as 
4he  offense  said  to  have  been  condoned  may  vary.  If  the  of- 
fense be  adultery,  then  knqwledge  of  the  fact,  followed  by  co- 
habitation, is  of  itself  condonation.5  Condonation  is  a  for- 
giveness, under  a  condition,  express  or  implied,  that  the  offense 
condoned  shall  not  be  repeated,  and  is  founded  upon  full 
knowledge  of  all  antecedent  guilt.  The  term  necessarily  in- 

3.  C.  L.  1915,  (11429) ;  Howell,  164  Mich.  638,  130  N.  W.  R.  194. 
2nd.  Ed.   §11490.  5.     8  Cyc.  p.   559;   McClanahan 

4.  Hof£  v.  Hoff,   48  Mich.   281,  v.  McClanahan,  104  Tenn.  217-228, 
12    N.   W.   R.   160;    Root  v.  Root,  56  S.  W.  R.  858. 

258 


1'IVOUCK    FKo.M    1:1:11    AM)    1!<»AKH    REVOKED  §370 

eludes  lliai  o|i»M-;ition  of  tin1  mind,  evinced  by  words  or  acts, 
known  as  forgiveness.  Such  forgiveness  must  be  free,  full  and 
voluntary.8 

§369.     Support  when  Divorce  from  Bed  and  Board  Denied. 

The  statute  provides  that  "in  case  of  an  application  for  a 
divorce  from  bed  and  board,  although  a  decree  for  such  di- 
vorce be  not  made,  the  court  may  make  such  order  or  decree 
for  the  support  and  maintenance  of  the  wife  and  children,  or 
any  of  them,  by  the  husband,  or  out  of  his  property,  as  the  na- 
ture of  the  case  may  render  suitable  and  proper.'?7 

A  decree  for  the  support  of  a  wife  and  children,  separate 
and  away  from  the  home  of  the  husband  and  father,  should 
not  be  made  unless  imperative  reasons  therefor  are  shown  by 
clear  and  convincing  proof.  A  permanent  separation  where 
there  are  young  children  cannot  fail  to  be  injurious  to  such 
children,  for  whom  a  home  ought  to  be  provided;  and  obvi- 
ously the  proper  home  for  such  children  is  the  one  where  their 
parents  reside.  The  court  in  such  cases  will  have  a  greater 
regard  for,  and  look  more  closely  to,  the  interests  and  welfare 
of  young  children  than  that  of  the  parents.8 

§370.     Divorce  from  Bed  and  Board  Revoked. 
A  decree  of  divorce  from  bed  arid  board  forever  or  for  a 

6.     3   Cyc.   page   560;     Ellis    v.  Pain,  37   Mo.  App.  110;    Heist  v. 

Ellis,   9  Atl.  R.   884-887;    Delliber  Heist,   48   Neb.   794,   67   N.   W.  R. 

v.    Delliber,    9    Conn.    234;    John-  790;   Burr  v.  Burr,  10  Paige    (N. 

son    v.    Johnson,    14    Wend.    637;  Y.),    20-24;    Owens   v.    Owens,   96 

Condonation  is  inferred  from  the  Va.  191-195,  31  S.  E.  R.  72;  Bavin 

fact    of    sexual    intercourse    after  v.  Bavin,  27  Ont.  571-581. 

knowledge  of  the  guilt  of  the  of-  7.     C.  L.  1915,  (11430);  Howell. 

fendinc;    Graham   v.   Graham,   50  2nd    Ed.    §11491;    Where    a   wife 

N.  J.  Eq.  701-706,  25  Atl.  R.  358;  obtains     a     decree     for     separate 

Phillips  v.  Phillips,  25  Wis.  252;  maintenance    from    her    husband 

Burr   v.   Burr,   10   Paige    (N.  Y.)  and  a  monthly  allowance  for  that 

20;  Crichton  v.  Crichton,  73  Wis.  purpose,  such  monthly  allowance 

59-64,  40  N.  W.  R.  638;   Odom  v.  should  cease  with  his  death,  and 

Odom,    36    Ga.    286;    Eggerth    v.  she  be  left  to  her  interests  in  his 

Eggerth,  15  Oreg.  626-628,  16  Pac.  estate  according  to  law;   Wagner 

R.   650;    Sullivan  v.   Sullivan,    34  v.   Wagner,   132  Mich.  343,  93  N. 

Ind.     368-369;     Andrews    v.    An-  W.   R.   889. 

drews,    120   Cal.    184-189,    52   Pac.  8.     Davidson     v.     Davidson,    47 

R.  298;   Sharp  v.  Sharp,  116   111.  Mich.   151;    10  N.  W.  R.  179;  C. 

509,   6   N.   E.  R.  15;    Farnham   v.  L.   '97,    (8655),    Howell   2nd.   Ed., 

Farnham,   73    111.    497-500;    Davis  $11492. 
v.    Davis,    19    111.    334;    Pain    v. 

259 


§371  ACTIONS    FOR    DIVORCE    AND    ANNULMENT 

limited  time  may  be  revoked  under  such  regulatious  and  re- 
strictions as  the  court  may  impose.  Such  revocation  can  be 
made  only  upon  the  joint  application  of  the  parties,  and.  their 
producing  satisfactory  evidence  of  their  reconciliation.9 

In  the  case  of  an  application  by  the  parties  to  revoke  such  a 
decree,  the  evidence  of  reconciliation  should  be  so  cogent  and 
convincing  as  to  satisfy  the  court  that  the  application  is  made 
in  good  faith  and  that  no  doubt  exists  that  the  reconciliation 
is  genuine.  If  the  showing  made  leads  the  court  to  believe 
that  there  is  a  probability  that  the  difficulties  and  differences 
between  the  parties,  and  the  causes  which  produced  the  sep- 
aration', will  be  renewed,  the  application  ought  to.be  denied. 
One  settlement  of  matrimonial  difficulties  between  the  same 
parties  ought  to  be  sufficient,  and  an  adjudication  of  that  char- 
acter ought  not  to  be  disturbed  without  clear  and  convincing 
proof. 

§371.     Special  Question  to  be  Asked  of  Witnesses. 

In  all  actions  for  divorce,  if  any  of  the  testimony  in  the 
case  is  taken  before  a  circuit  court  commissioner,  or  by  stipu- 
lation or  order  of  the  court  before  any  other  officer,  it  is  the 
duty  of  the  commissioner  or  other  officer  to  ask  each  and  every 
\vitness  sworn  by  and  before  him  in  such  action  the  following 
questions: — "Do  you  know  of  any  fact,  matter,  or  circum- 
stance, which  will  in  any  way  tend  to  weaken  complainant's 
case  for  divorce?  If  so  state  the  same  particularly  and  fully." 
This  question  must  be  reduced  to  writing  by  the  commissioner 
or  other  officer  who  takes  the  testimony,  and  the  answer  of 
the  witness  to  such  question  must  also  be  reduced  to  writing, 
verbatim  as  far  as  possible  and  the  question  and  answer  re- 
turned to  the  court  with  the  other  testimony  in  the  case.9 

The  neglect  or  refusal  of  the  commissioner  or  other  officer 
to  comply  with  the  provisions  of  this  act  would  undoubtedly 
justify  the  court  in  denying  the  application  for  a  divorce ;  but 
in  a  proper  case  the  court  might  in  its  discretion  direct  the  de- 
fect to  be  supplied  by  the  commissioner  or  other  officer,  and 
require  the  witnesses  to  appear  again  and  answer  such  ques- 
tion. 


260 


9.     C.  L.  1915,  (11432);  Howell,   2nd  Ed.   §11493. 

H 


HI  I.I,     OF     COM  PLAINT 

§372.     Bill  of  Complaint  to  Allege  Names  and  Ages  of  Child- 
ren.    Service  of  Summons  on  Prosecutor. 

Every  hill  of  complaint  filed  for  divorce,  either  absolute  or 
limited,  must  set  forth  the  names  and  ages  of  all  of  the  chil- 
dren of  the  marriage,  and,  when  there  are  children  under  four- 
teen year*  of  age.  a  copy  of  the  chancery  summons  issued  in 
the  cause  must  he  served  upon  the  prosecuting  attorney  of  the 
county  where  the  action  is  commenced.  It  then  becomes  the 
duty  of  the  prosecuting  attorney  to  enter  his  appearance  in 
the  cause,  and  when,  in  his  judgment,  the  interests  of  the 
children  or  the  public  good  so  requires,  he  must  appear  at  the 
hearing,  introduce  evidence,  and  oppose  the  granting  of  a  de- 
cree of  divorce. 

Also,  in  any  case  where  there  are  no  children  of  the  mar- 
riage under  fourteen  years  of  age.  if  it  appears  to  the  court 
that  the  public  good  so  requires,  an  order  may  be  entered  re- 
quiring the  prosecuting  attorney  to  appear  and  oppose  the 
granting  of  a  decree  of  divorce.10 

This  section  does  not  prevent  prosecuting  attorneys  or  their 
partners  from  acting  as  attorneys  or  counsellors  for  either 
party  to  the  action.  In  case  the  prosecuting  attorney  is  in 
any  way  interested  as  attorney  or  counsellor  for  either  party, 
it  becomes  the  duty  of  the  court  to  appoint  some  respectable 
attorney  to  perform  the  services  and  duties  of  the  prosecuting 
attorney. 

The  prosecuting  attorney,  or  other  attorney  a] (pointed  by 
the  court,  is  entitled  to  five  dollars  compensation  for  each  case 
in  which  an  investigation  is  made  and  an  appearance  entered. 
A  practise  seems  to  prevail  in  some  of  the  circuit  court*  <•!' 
this  state,  by  which  the  prosecuting  attorney,  after  receiving 
a  copy  of  the  summons,  simply  files  a  written  report  without 
entering  an  appearance  and  receiving  a  copy  of  the  bill  of  com- 
plaint. Whatever  may  be  the  effect  of  such  practice  where  a 
decree  is  granted  it  certainly  does  not  comply  with  the  statute. 
It  is  a  well  settled  principle  that  the  public  good  requires  that 
there  shall  be  no  collusive  divorces.  Where  bills  are  filed,  or 
not  defended,  by  reason  of  some  understanding  or  agreement 
between  the  parties,  not  only  does  public  policy  forbid  such  di- 
vorces, but  they  are  positively  forbidden  by  legislative  enact- 
ment. 

10.     C.  L.  1915,  (11433);  Howell,  2nd.  Ed.,  §11494. 

261 


§373  ACTIONS    FOR    DIVORCE    AND    ANNULMENT 

In  all  cases  where  there  are  children  of  the  marxiage  under 
fourteen  years  of  age,  a  copy  of  the  summons  must  be  served 
on  the  prosecuting  attorney.  On  receiving  such  summons,  it 
is  the  positive  duty  of  the  prosecuting  attorney  to  enter  an  ap- 
pearance in  the  case.  He  is  then  entitled  to  a  copy  of  the  bill, 
and  such  copy  must  be  served  on  him  by  complainant's  attor- 
ney according  to  the  rules  and  practice  of  the  court.  He 
should  then  examine  the  bill  and  investigate  the  case,  and  de- 
termine whether  the  interests  of  the  children  and  the  public 
good  require  that  the  application  should  be  opposed,  and  re- 
port this  determination  to  the  court.  The  statute  is  mandatory 
in  this  respect,  and  it  is  for  such  services  that  he  receives  the 
compensation  provided  for  therein.11 

/ 

§373.     Remarriage  may  be  Forbidden — Limit  of  Time — Penalty 
for  Violation. 

The  court  granting  a  decree  of  divorce  may  provide  in  such 
decree  that  the  party  against  whom  the  decree  is  granted  shall 
not  marry  again  within  such  time  as  shall  be  fixed  by  the 
court,  which  time  shall  be  set  out  in  the  decree.  The  court  is 
not  authorized  to  prohibit  the  remarriage  of  the  complainant, 
and  the  prohibition  against  remarriage  of  the  guilty  party 
cannot  be  for  a  longer  period  than  two  years  from  the  time  the 
decree  is  granted.  In  case  any  person  so  prohibited  shall 
marry  within  the  time  fixed  by  such  decree,  such  person  is 
deemed  to  have  committed  the  crime  of  bigamy  and  is  subject 
to  the  penalties  provided  by  law  for  such  crime.12 

It  has  been  held  in  this  state  that  the  court  has  no  jurisdic- 
tion to  punish  a  person  for  criminal  contempt  who  violates  the 
provision  of  this  statute,  and  of  a  decree  prohibiting  him  from 
marrying  for  a  period  expressed  in  the  decree,  by  marrying 
again  in  a  foreign  jurisdiction  within  such  period.18 

Statutes  imposing  restrictions  upon  the  remarriage  of  di- 
vorced persons  are  quite  common,  and  in  some  jurisdictions 
are  operative  without  the  aid  of  an  express  prohibition  in  the 
decree  of  divorce.  In  Wisconsin  the  statute  provides  that  it 
shall  not  be  lawful  for  a  divorced  person  to  marry  again  with- 
in one  year  from  the  date  of  the  decree  of  divorce.  This  pro- 

11.  Wilcox    v.    Circuit    Judge,  13.     In    re     Crane,     170     Mich. 
83  Mich.  1,  47  N.  W.  R.  29.  051,   136   N.  W.   R.   587,   McAlvay 

12.  C.  L.  1915,  (11434);  Howell,  snd   Brook,   JJ.   dissenting. 
2nd.  Ed.  §11495. 

262 


;i;   .MAY    i;i;   FUUI;II>I>LN  §373 

bibitiou  is  absolute,  without  the  aid  of  an  express  provision  in 
the  decree  to  that  effect.  In  this  respect  the  Wisconsin  stat- 
ute differs  from  that  of  Michigan.  In  Michigan,  if  the  decree 
is  silent  on  the  subject  the  statute  has  no  force.  In  Wisconsin 
it  is  held  that  the  statute  declares  a  public  policy  which  will 
prevent  the  recognition  by  the  courts  of  that  state  of  a  mar- 
riage between  its  citizens  who  go  to  another  state  to  evade  the 
provisions  of  the  statute,  and  return  to  their  former  domicile 
after  the  ceremony.14 

Their  ;nc  other  states  whose  laws  provide  that  the  guilty 
party,  against  whom  a  decree  of  divorce  has  been  rendered, 
shall  not  remarry  for  a  term  of  years,  or  for  life,  and  such  laws 
have  generally  been  regarded  merely  as  intended  to  fix  and 
regulate  the  conduct  of  the  divorced  party  within  the  state, 
and  not  as  intended  to  follow  him  to  another  jurisdiction,  and 
to  prevent  a  marriage  which  would  be  lawful  there;  in  other 
words  they  impose  a  penalty  only  local  in  its  effect.  Under 
this  construction  the  remarriage  of  such  guilty  party  in  an- 
other state  has  generally  been  held  valid,  notwithstanding  the 
prohibition  of  the  local  statute.15 

Statutes  prohibiting  marriage  after  divorce  do  not  operate 
extraterritorially  unless  made  to  do  so  by  express  words  or 
necessary  implication,  as  has  been  frequently  held  in  this 
country.16  It  is  generally  considered,  however,  that  the  weight 
of  American  authority,  as  well  as  reason  and  analogy,  sustain 
the  proposition  that  a  marriage  in  another  state,  where  it  is 
valid  according  to  the  laws  of  that  state,  of  a  divorced  person 
incapable  of  remarrying  by  the  law  of  his  domicile,  will  not 
be  held  void  under  the  law  of  his  domicile  unless  the  statute 
expressly  so  provides,  although  he  went  outside  the  state  of 
his  domicile  for  the  express  purpose  of  evading  the  law,  and 
immediately  returned.17 

14.  Lanhan     v.     Lanhan,     136  W.  R.  39;  Van  Voorhis  v.  Baine- 
Wis.    360,   117   N.   W.   R.   787,   17  nail,  86  N.  Y.  18,  40  Am.  R.  505; 
L.    R.   A.    (N.    S.)    804,   128   Am.  State    v.    Shattuck,.  69    Vt.    403, 
St.  R.  1085.  40   L.   R.    A.   428,    60   Am.    St.    R, 

15.  Lanham    v.    Lanham,     136  936,  38  Atl.  R.  81. 

Wis.   360,   117   N.   W.   R.   787.   17  16.    Pennegar  v.  State,  87  Tenn. 

L.    R.   A.    (N.    S.)    804,    128   Am.  244,    2    L.   R.    A.    703,   and    cases 

St.  R.  1085;  In  re  Crane,  17  Mich.  cited. 

651,  136  N.  W.  R.  587;  Frame  v.  17.     State   v.    Shattuck,    69   Vt. 

Thormann,    102    Wis.    654,    79    N.  403  L.  R.  A.  428. 

263 


§374  ACTIONS   FOR  DIVORCB  AND  ANNULMENT 

§374.    Dower — Provision  in  Lieu  of — Tenants  by  Entireties. 

The  legislature  in  1909  enacted  that  "when  any  decree  of 
divorce  is  hereafter  granted  in  any  of  the  courts  of  this  state, 
it  sh/ill  be  the  duty  of  the  court  granting  such  decree  to  in- 
clude in  it  a  provision  in  lieu  of  the  dower  of  the  wrife  in  the 
property  of  the  husband,  and  such  provision  shall  be  in  full 
satisfaction  of  all  claims  that  the  wife  may  have  in  any  prop- 
erty which  the  husband  owns  or  ma"y  thereafter  own,  or  in 
.which  lie  may  have  an  interest."18 

The  same  act  also  provides  that  "every  husband  and  wife 
owning  real  estate  as  joint  tenants  or  as  tenants  by  entireties 
shall,  upon  being  divorced,  become  tenants  in  common  of  such 
real  estate,  unless  the  ownership  thereof  is  otherwise  deter- 
mined by  the  decree  of  divorce."19 

In  such  cases,  if  the  bill  or  any  amendment  thereto,  or  the 
answer  or  cross-bill,  asks  that  the  ownership  of  land  described 
therein  and  owned  by  the  parties  as  joint  tenants,  or  as  ten- 
ants by  entireties,  shall  be  determined  by  the  decree  of  divorce 
it'  granted,  the  court  granting  the  decree  may  award  such 
lands  to  one  or  the  other  of  said  parties,  or  any  part  of  it  to 
either  of  them,  or  may  order  such  lands  to  be  sold  under  the 
direction  of  a  circuit  court  commissioner  and  the  proceeds 
thereof  divided  between  the  parties  in  such  proportion  as  the 
court  shall  order.  Or  the  court  may  appoint  commissioners  to 
partition  such  lands  between  the  parties  in  the  proportions 
fixed  by  the  decree.20 

Where  a  decree  of  divorce  determines  and  fixes  the  owner- 
ship of  real  estate  the  decree  should  be  recorded  in  the  office 
of  the  register  of  deeds  of  the  county  in  which  such  real  estate 
is  located.21 

The  interest  of  a  wife  in  lands  held  by  herself  and  husband 
as  tenants  by  entireties  cannot  be  diminished  by  a  decree  of 
divorce.22 

§375.    Alimony— When  Decree  Rendered  in  Another  State. 

In  all  cases  where  a  decree  for  alimony  has  been  rendered 
by  a  court  of  competent  jurisdiction  in  another  state,  in  which 

18.  C.  L.  1915,  (11436) ;  Howell,       2nd.  Ed.,  §11499. 

2nd  Ed.    §11496.  22.     Delor   v.    Delor,   159    Mich. 

19.  C.  L.  1915,. (H437)  ;  Howell,  624,  124-  N.  W.  R.  540;   Brown  v. 
2nd.  Ed.,   §11497.  Brown,  144  Mich.  654,  108  N.  W. 

20.  C.  L.  1915,  (11438)  ;  Howell,  R.    288;    Brasch    v.    Brasch,    168 
2nd,  Ed.,  §11498.  Mich'  459,  134  N.  W.  R.  450. 

21.  C.  L.  1915,  (11439) ;  Howell, 

264 


KHillT    OK     111   sr.AM>    TO    ALIMONY 

the  parly  against  whom  the  decree  \vas  rendered  appeared  in 
the  cause,  or  was  personally  served  \villi  process  within  the 
jurisdiction  of  the  court,  the  alimony  decreed  upon  linal  hear- 
ing may  be  recovered  in  this  state  in  an  action  at  law.  regard- 
less of  whether  such  alimony  is  decreed  to  be  paid' in  install 
ments  from  time  to  time,  or  in  one  payment. 

When  an  action  a!  law  is  brought  in  this  state  to  recover 
alimony  decreed  in  another  state,  the  defendant  in  such  action 
may  show  that  he  has  made  a  proper  application  to  the  court 
of  the  other  state  in  which  such  decree  was  granted,  for  a  re- 
duction of  the  amount  decreed,  or  any  further  order  in  rela- 
tion thereto,  and  thereupon  the  court  in  which  such  action  is 
pending  in  this  stale  may  slay  the  proceedings  therein  on  such 
terms  as  it  may  desire  to  impose.  In  cases  where  a  judgment 
is  rendered  in  any  such  action,  all  proceedings  thereafter  are 
stayed  lor  the  period  of  sixty  days,  and  if  during  such  term 
i he  defendant  in  such  action  in  this  state  presents  satisfac- 
tory evidence  of  a  change  in  the  decree  of  the  courts  of  the 
other  state,  the  judgment  in  this  state  may  be  altered  or 
amended  in  such  way  as  shall  seem  proper  and  just  to  the 
court.23 

i 
§376.    Restoring  Former  Name  to  Wife. 

In  all  cases  where  a  decree  of  divorce  is  granted,  and  there 
are  no  minor  children,  the  issue  of  the  marriage,  the  court,  on 
the  application  of  the  wife,  may  make  a  decree  to  restore  to 
her  her  maiden  name,  or  the  name  she  legally  bore  prior  to  her 
marriage  to  the  husband  in  the  divorce  suit,  or  allow  her  to 
adopt  another  name.24  The  request  for  a  change  of  her  name 
may  be  made  by  the  wife  in  her  bill,  answer,  or  cross-bill  as 
the  case  may  be,  and  the  name  which  she  desires  to  assume  in 
case  a  decree  of  divorce  is  granted  should  be  stated. 
/ 

§377.    Right  of  Husband  to  Alimony  out  of  Wife's  Property. 

In  what  has  been  said  so  far  on  the  subject  of  alimony,  ref- 
erence has  been  made  only  to  the  Michigan  statutes.  Without 
statutory  authority  courts  have  no  jurisdiction  to  award  ali- 
mony to  a  husband  out  of  his  wife's  property. 

In  Michigan  neither  the  written  nor  the  unwritten  law  jus- 

23.  C.  L.  1915.  (11440) ;  Howell,  24.  C.  L.  1915.  (11435) ;  Howell. 
2nd.  Ed.,  §11500,  11501,  11502.  2nd.  Ed.,  §11503. 

265 


§377  ACTIONS   FOR  DIVORCE  AND  ANNULMENT 

tifies  adjudging  alimony  to  a  former  husband  out  of  his  di- 
vorced wife's  property  or  earnings,  no  matter  how  great  the 
necessities  of  the  husband  or  the  ability  of  the  wife.  It  may 
be  said  in  passing,  however,  that  we  are  speaking  of  alimony 
strictly  so-called,  and  not  of  division  of  property. 

As  said  by  a  standard  text-writer  "No  instance  could  occur 
at  common  law  in  which  the  court  would  decree  alimony  to 
the  husband;  and  in  the  absence  of  any  statute  creating  such 
liability,  the  wife  would  not  be  liable  to  an  action  for  alimony, 
although  she  is  enabled  by  statute  to  hold  and  transfer  real 
and  personal  property  in  her  own  name  and  right."25 

True,  the  commentator  suggests  that,  under  a  system  per- 
mitting a  husband's  property  to  be  transferred  to  the  wife, 
equitable  considerations  would  seem  to  justify  burdening  the 
same  with  alimony  in  favor  of  the  husband,  but  that  is  a  mat- 
ter exclusively  for  the  law-making  power  to  deal  with.  In  a 
Kansas  case  the  court  observed  that  there  is  no  judicial 
authority  for  giving  the  husband  alimony.  "The  domestic  rela- 
tions will  have  to  be  readjusted  by  the  legislature,  and  an  ob- 
ligation cast  upon  the  wife  to  support  the  husband  before  such 
an  action  can  be  maintained,"26  said  the  Court,  speaking  evi- 
dently of  an  obligation  to  so  support  after  a  decree  of  perma- 
nent separation.  It  must  be  remembered  in  this  connection 
that  permanent  alimony,  alimony  after  the  dissolution  of  the 
marriage  contract,  is  wholly  a  creation  of  written  law.  It  was 
not  known  to  the  common  law  or  to  ecclesiastical  law.  One  is 
liable  to  fall  into  some  confusion  in  studying  this  subject,  as 
perhaps  some  text  writers  have  done,  if  he  does  not  keep  in 
mind  the  principles  above  alluded  to,  upon  reading  here  and 
there  in  elementary  works  that  alimony  may  be  granted  to  a 
husband  in  a  divorce  proceeding,  and  referring  without  fur- 
ther comment  to  cases  which  were  decided  in  accordance  writh 
plain  statutory  provisions  allowing  such  award. 

While  no  statutory  provision  has  been  made  in  Michigan 
and  many  of  the  other  states,  allowing  an  award  to  a  former 
husband  out  of  his  divorced  wife's  property,  such  provisions 
have  been  made  by  legislative  enactment  in  other  states.  In 
Massachusetts  the  statute  provides  that  "when  a  divorce  is  de- 
creed for  any  of  the  causes  mentioned  in  sections  seven  and 
ten,  the  court  granting  it  may  decree  alimony  to  the  wife,  or 

25.     2    Nelson,    Div.     and     Sep.          26.     Somers      v.      Somers,      39 

Kan.  132,  17  Pac.  R.  841. 


266 


KK.IITS    <>r     III   Sl:.\M»    TII     AI.IMo.NN  §377 

any  share  <•!'  her  estate  in  the  nature  of  alimony  to  the  hus- 
band."-' A  somewhat  similar  provision  is  made  in  Iowa," 
Khodo  Island,  North  Carolina,  Washington.  Oregon,  and  per- 
haps in  other  states. 

In  Masachusetts  the  statute  authorizes  the  court  to  award 
a  share  of  the  wife's  estate  in  the  nature  of  alimony  to  the  hus- 
band upon  a  decree  of  divorce  from  the  bonds  of  matrimony, 
absolutely  and  finally  severing  the  marriage  tie;  but  in  the 
case  of  a  divorce  iiixi,  which  is  in  the  nature  of  a  divorce  from 
bed  and  board,  not  absolutely  dissolving  the  bonds  of  matri- 
mony between  the  parties,  no  provision  for  alimony  is  made  by 
the  statute  authorizing  such  divorce.29 

In  an  Iowa  case,  a  farm  purchased  with  money  given  to  a 
wife  by  her  father  was  decreed  to  her,  but  was  charged  with 
an  allowance  of  seventy-five  dollars  a  year  to  the  husband. 
The  appellate  court  held  that  the  husband  had  no  right  to 
complain  of  the  allowance  made,  in  view  of  the  fact  that  the 
farm  came  to  him  from  his  wife,  although  it  appeared  that  he 
was  not  at  fault.80 

Where  the  statute  authorizes  the  court  to  decree  alimony  to 
the  husband,  it  has  been  held  to  be  error  to  do  so  when  it 
appears  that  he  is  at  fault  and  is  amply  able  to  provide  for 
himself.31 

But  in  a  later  Iowa  case  it  was  held  that  the  fact  that  the 
hu si iand  is  at  fault  does  not  necessarily  bar  his  right  to 
alimony,  and  that  in  a  proper  case  the  court  may  award  it."- 

In  Oregon  a  statute  authorizes  the  court  in  an  action  for 
divorce  to  allow  an  amount  against  the  party  at  fault  for  the 
maintenance  of  the  other.  Under  this  statute  it  is  held  that 
alimony  may  be  awarded  to  the  husband  in  a  proper  case.33 

In  England  it  is  provided  by  act  of  Parliament  that  if  an 
adulterous  wife  shall  be  entitled  to  any  property  in  possession 
or  reversion,  the  courts  shall  have  power  to  settle  a  reasonable 
part  of  it  for  the  benefit  of  the  innocent  party.  This  statute 

27.  General    Stat.     Mass.,     Ch.          31.     Barnes  v.  Barnes,  59  Iowa 
107   §44;    Garnett  v.   Garneft,   114       456,  13  N.  W.  R.  441. 

Mass.  347.  32.     McDonald  v.  McDonald,  117 

28.  Iowa    Code,     1873,     §2226;  Iowa  307,  90  N.  W.  R.  603. 
Small    v.    Small,    42    Iowa    111;  33.     Henderson     v.     Henderson, 
Barnes  v.  Barnes,  59  Iowa  456 ;  13  37  Ore.  147,  60  Pac.  R.  59J,  61  Pac. 
N.  W.  R.  441.  R.  136,  48  L.  R.  A.  766,  82  Am.  St. 

29.  Garnett     v.     Garnett,     114  R.   741,  Huffman   v.   Huffman,   47 
Mass.  347.  Ore.  616,  86  Pac.  R.  593,  114  Am. 

30.  Casey   v.    Casey,   116   Iowa  St.  R.  943. 
655/188  N.  W.  R.  937. 

267 


ACTIONS    FOR   DIVORCE   AND    ANNULMENT 

has  been  held  to  authorize  a  settlement  for  the  benefit  of  an 
innocent  husband,  and  therefore  the  court  may  award  an 
annual  allowance  for  him.34 

In  a  Canadian  case  a  weekly  allowance  was  granted  to  the 
husband  upon  the  granting  of  a  decree  of  divorce  where  it 
°d  that  the  husband's  means  of  support  were  taken 
away  by  the  divorce.  It  does  not  appear  from  the  report 
whether  or  not  the  allowance  was  made  under  the  authority  of 
a  statute.35 

In  a  California  case  the  court  said:  "Alimony  in  its  strict 
legal  sense  proceeds  only  from  the  husband  to  the  wife,  and 
the  legislature  in  speaking  of  that  term  meant  it  only  in  that 
sense."  3G 

In  a  later  California  case  it  was  held  that  a  wife  might  be 
compelled  to  pay  toward  the  support  of  her  husband  under 
the  provisions  of  a  statute  compelling  her  to  support  him  out 
of  her  separate  property.37 

It  may  be  stated,  however,  that  the  power  of  the  court  to 
make  such  an  order  should  not  be  confused  with  the  power  to 
grant  alimony.  The  right  given  by  the,  statute  for  support  in 
such  a  case  is  independent  of  divorce  proceedings,  and  an 
allowance  may  be  decreed  although  no  divorce  is  asked,  and  if 
an  allowance  is  granted  the  failure  to  comply  with  the  order 
may  be  punished  as  a  contempt. 

Alimony,  in  its'  strict  legal  sense,  is  such  sum  as  is  ordered 
by  the  court  to  be  paid  by  a  husband  to  his  wife  for  her  sup- 
port, during  the  time  she  lives  separate  and  apart  from  him. 
The  right  to  such  alimony  originated  in  the  common  law 
liability  of  the  husband  to  support  his  wife.  Alimony  required 
to  be  paid  by  the  husband  to  the  wife,  after  the  dissolution  of 
the  marriage  tie,  is  a  creation  of  modern  law,  and  is  what  is 
known  as  permanent  alimony.38 

Alimony  is  allowed  the  wife  in  recognition  of  the  husband's 
common  law  obligation  to  support  her;  therefore,  in  the  ab- 
sence of  legislation  readjusting  dojnestic  relations  and  allow- 

34.  20    and    21    Viet.    Ch.    85;  36.     In  re  Spencer  83   Cal.  460, 
March  v.  March,  L.  R.  1  P.  &  D.  23  Pac.  R.  395,  17  Am.  St.  R.  266. 
440;  Milne  y.  Milne,  L.  R.  2  P.  &  37.     Livingston       v.       Superior 
D.  295.  Court,  117  Cal.  633,  49  Pac.  R.  836, 

35.  Joly  v.  Garnaeu,  5  Quebec  38  L.  R.  A.  175. 

Pr.  137.  38.     2  Bishop  Mar.  &  Div.  §351. 

268 


KKJ11TS    OF     MCSr.AM)    To    AI. I. \lo.\V 

ing  it,  there  being  no  corresponding  liability  on  the  part  of  the 
wife  to  support  her  husband,  alimony  cannot  be 'awarded  to 
him  out  of  his  wife's  property.  Yet  legislation  in  several  of  the 
states  is  setting  quite  strongly  in  a  direction  to  ultimately 
exhibit  the  spectacle  of  rich  wives  supporting  poor  husbands, 
and  husbands  defrauding  their  creditors  while  wealth 
them  in  the  arms  of  their  wives. 


269 


CHAPTEE  XXXII. 

GENERAL  STATUTORY  PROVISIONS  CONCERNING 

HUSBAND  AND  WIFE. 

/ 

.§378.     Abandonment  of  Wife  by  Husband. 

§379.  Married  Woman  Coming  from  Another  State  or  Country  With- 
out Her  Husband. 

§380.  Divorce  from  Bed  and  Board. — Effect  of  on  Wife's  Property  and 
Obligations. 

§381.  Rights  of  Married  Woman  in  Relation  to  Property  Owned  by 
Her. 

§382.    Alimony  Where  Wife  is  Deserted  or  Neglected  by  Husband. 

§383.    When  Husband  May  be  Required  to  Support  Wife. 

§384.     Proceedings  and  Practice. 

§385.    Care  and  Custody  of  Children — Allowance  May  be  Changed. 

§386.     Custody   of  Children   When   Husband   and   Wife   Separate. 

§387.     Legal  Impediment  to  Marriage  as  Bar  to  Actions  for  Damages. 

§388.     Punishment  of  Husband  for  Desertion. 

§389.     Certain  Wife   Desertion — Felony — Limitations. 

§378.    Abandonment  of  Wife  by  Husband. 

"When  any  married  man  shall  absent  himself  from  the  state, 
abandoning  his  wife,  and  not  making  sufficient  provision  for 
her  maintenance,  if  the  wife  is  of  the  age  of  twenty-one  years, 
the  Probate  Court  of  the  County  in  which  she  resides  may,  on 
her  petition,  authorize  her  to  sell  and  convey,  or  lease  her 
real  estate,  or  any  part  thereof,  and  also  to  sell  and  dispose  of 
any  personal  estate  which  shall,  at  any  time,  have  come  to  the 
husband,  or  to  which  he  may  be  entitled,  by  reason  of  the 
marriage,  and  which  may  remain  in  this  state  undisposed  of.1 

This  section,  as  well  as  several  of  the  other  statutory  pro- 
visions mentioned  in  this  Chapter,  were  enacted  before  the 
passage  of  the  married  woman's  act  of  1855,  and  before  the 
adoption  of  the  constitution  of  1850,  and  are  contained  in 
Chapter  eighty-five  of  the  Revised  Statutes  of  1846,  and  also 
appear  in  practically  the  same  form  in  every  compilation  of 

1.     C.  L.  1915,  (11451);  Howell,  2nd  Ed.  §11504. 
270 


MAUKIKI-      W<i.\IA.\      WITI10IT      IIKK     IllSllANH 

the  statutes  since  that  time.2  The  adoption  of  the  constitution 
of  1850,  and  the  passage  of  the  married  woman's  act  of  1855. 
while  not  expressly  repealing  Chapter  85  of  the  revised  statutes 
of  1846,  practically  makes  many  of  the  provisions  of  that 
chapter  obsolete.  But  even  after  the  lapse  of  so  many  years 
since  the  constitution  of  1850  went  into  effect,  cases  may  arise 
where  property  rights  dependent  upon  or  regulated  by  those 
early  laws  come  in  question. 

It  would  seem,  however,  that  at  the  present  time  there  can 
be  no  occasion  for  a  married  woman,  whose  husband  has  de- 
serted and  abandoned  her  without  making  sufficient  provision 
for  her  maintenance,  to  apply  to  the  Probate  Court  of  the 
county,  where  she  resides,  for  the  relief  which  Chapter  85  of 
the  Revised  Statutes -of  184G  provides. 

The  provisions  referred  to  and  the  authority  of  the  Probate 
Court  to  grant  such  relief  only  extend  to  suelf  real  estate  as 
is  owned  by  the  wife,  and  to  such  personal  estate  as  shall 
have  at  any  time  come  to  the  husband,  or  to  which  he  may  be 
entitled,  by  reason  of  the  marriage. 

But  since  1855,  all  of  the  real  and  personal  estate  of  every 
woman,  acquired  before  marriage,  and  all  property,  real  and 
personal,  to  which  she  may  afterwards  become  entitled  in  any 
way,  is  her  own  estate  and  property,  to  do  with  as  she  pleases, 
and  may  be  disposed  of  by  her  in  the  same  manner,  and  with 
the  like  effect  as  if  she  were  unmarried ;  consequently  there  can 
be  no  occasion  or  reason  whatever  for  her  to  make  an  applica- 
tion to  the  Probate  Court  for  authority  to  do  that  which  she 
already  has  competent  legal  authority  to  do.  The  first  nine- 
teen sections  of  Chapter  85  of  the  Revised  Statutes  of  1846,  for 
the  reasons  before  stated,  appear  to  be  obsolete  if  not  repealed 
by  implication,  by  subsequent  enactment.  Some  of  the  pro- 
visions of  that  chapter,  however,  are  still  in  force. 

§379.     Married  Woman  Coming  From  Another  State  or  Country 

Without  Her  Husband. 

Section  20  of  Chapter  85  of  the  Revised  Statutes  of  1!»4<; 
provides  that:  "When  any  married  woman  shall  come  from 
liny  other  state  or  county  in  this  state,  without  her  husband. 
she  may  transact  business,  make  contracts,  and  commence, 

2.     Revised   Statutes,   1846,   Ch.  tated  Statutes,  1st  Ed.  §§  6264  to 

85,  C.  L.  1857,  Ch.  109,  §§  1  to  27  6290  inclusive;   Howell's  2nd  Ed. 

inclusive,  C.  L.   1871,  Ch.  233,  §§  §  §  11504  to  11530  inclusive;  C.  L. 

1  to  27  inclusive;  Howell's  Anno-  1915,    (11451)    to    (11481). 

271 


§379  HUSBAND    AND    WIFE 

i 

prosecute  and  defend  suits  in  her  own  name,  and  dispose  of 
her  property  which  may  be  found  in  this  state,  or  which  she 
may  acquire,  in  like  manner,  in  all  respects,  as  if  she  were 
unmarried."  3 

The  next  section  provides  that :  "Such  married  woman  shall 
be  liable  to  be  sued  as  if  she  were  unmarried,  upon  all  con- 
tracts, and  for  all  other  acts,  made  or  done  by  her  after  her 
arrival  in  this  state ;  and  she  may  make  and  execute  any  deeds 
and  other  instruments,  in  her  own  name,  and  do  all  other 
lawful  acts,  that  may  be  necessary  and  proper  to  carry  into 
effect  the  powers  herein  granted  to  her."  4 

The  next  section  provides  that:  "If  the  husband  of  any 
such  woman  shall  afterwards  come  into  this  state,  and  claim 
his  marital  rights,  his  arrival  here  shall  have  the  same  effect, 
with  regard  to,  any  suit  then  pending,  in  which  she  is  a  party, 
and  to  any  contract  made,  or  business  transacted  by  her  under 
the  power  granted  to  her  by  the  provisions  of  this  chapter,  as  if 
they  had  been  just  married  at  the  time  of  his  arrival  here,  and 
shall  have  no  other  effect.5 

There  appears  to  be  no  reported  case  in  which  the  provisions 
of  this  statute  have  been  construed,  or  passed  upon  by  the 
Supreme  Court  of  this  State,  Nor  have  the  provisions  of  these 
sections  been  repealed  by  express  enactment,  or  by  necessary 
implication  from  subsequent  enactment  inconsistent  therewith. 

Whether  this  statute  would  apply  to  a  case  where  a  wife 
came  to  this  state  from  another  state  or  country,  without  her 
husband,  but  with  his  knowledge  and  consent,  and  for  a  visit 
or  some  other  temporary  object,  may  admit  of  some  doubt.  It 
would  seem,  however,  that  a  fair  construction  of  the  statute 
would  confine  its  application  to  cases  in  which  the  wife  came 
into  this  state  for  some  permanent  purpose  and  without  the 
consent  or  approval  of  her  husband,  from  the  fact  that  the 
husband  may  at  any  time  put  an  end  to  the  power  of  the  wife 
to  do  the  things  mentioned  in  the  statute  by  coming  into  the 
state  and  claiming  his  marital  rights.  And  in  order  for  the 
wife  to  become  possessed  of  the  rights  and  be  subjected  to  the 
obligations  mentioned,  she  must  have  never  resided  in  this 
state  with  her  husband. 

3..   C.  L.  1915,  (11470);  Howell,       2nd    Ed.    §11524. 
2nd  Ed.   §11523.  5.     C.  L.  1915,  (11472) ;  Howell, 

4.     C.  L.  1915,  (11471);  Howell,       2nd  Ed.  §11525. 

272 


n:nri:i:n    I:H.IITS   OF   MAKIMKH    \v«».\n:\ 

§380.     Divorce    From    Bed    and    Board.     Effect    of    on    Wife's 
Property  and  Obligations. 

Section  twenty  four  of  Chapter  85  of  the  Revised  Statutes 
of  184(1,  also  provides  that:  "Upon  a  divorce  from  bed  and 
board,  the  wife  shall  have  the  same  powers  and  rights  in 
respect  ID  her  real  and  personal  estate,  and  such  as  she  may 
afier\vards  acquire,  and  shall  be  subject  to  the  same  liabilities 
in  all  respects  as  an  unmarried  woman,  and  may  sue  and  be 
sued  in  her  own  name  in  like  manner.8 

This  section  has  never  been  expressly  repealed,  and  its  lan- 
guage seems  to  he  broad  enough  to  invest  a  married  woman 
\vho  has  been  legally  separated  from  her  husband  by  a  decree 
of  divorce  from  bed  and  board,  with  all  of  the  rights,  and  to 
subject  her  to  all  of  the  obligations  of  an  unmarried  woman, 
except  the  right  to  contract  another  marriage. 

§381.    Rights  of  Married  Woman  in  Relation  to  Property  Owned 

by  Her. 

In  18447  the  legislature  of  this  state  enacted  that:  "Any 
real  or  personal  estate  which  may  have  been  acquired  by  any 
female  (we  prefer*, to  say  woman'),  before  her  marriage,  either 
by  her  o\vn  personal  industry,  or  by  inheritance,  gift,  grant,  or 
devise,  or  to  which  she  may  at  any  time  after  her  marriage  be 
entitled  by  inheritance,  gift,  grant,  or  devise,  and  the  rents, 
profits  and  income  of  any  such  real  estate,  shall  be  and  con- 
tinue the  real  and  personal  estate  of  such  female  after  mar- 
riage, to  the  same  extent  as  before  marriage;  and  none  of  said 
property  shall  be  liable  for  her  husband's  debts,  engagements 
or  liabilities;  but  such  property  shall  be  liable  for  all  debts  of 
the  wife  contracted  prior  to  her  said  marriage."  By  the 
revision  of  1840,  two  provisions  were  added  as  follows:  "Pro- 
vided, That  nothing  in  this  section  contained  shall  be  construed 
to  authorize  any  married  woman  to  give,  urant.  or  sell  any 
such  real  or  personal  property  during  coverture,  without  the 
consent  of  her  husband,  except  by  order  of  the  Judge  of  Pro- 
bate, or  the  proper  court  of  the  county  :  I  nd  provided  farther, 
That  upon  a  separation  between  such  husband  and  wife,  saving 
by  an  adjudication  of  court  such  married  woman  shall  in  no 
case  be  authori/ed  to  remove  any  such  property  from  the 
premises  oJ'  her  husband  without  his  consent."8 

6.  C.  L.  1915,  (11474);  Howell,          8.     C.  L.  1915.  (11475);  Howell, 
:m\   Ed.   $11527.  2nd  Ed.  $11528. 

7.  P.  A.  1844,  page  77. 

273 


§382  HUSBAND  AND  WIFE 

The  Act  of  1844  took  away  all  present  rights  of  the  husband 
to  the  property  of  the  wife,  both  real  and  personal,  and  to  the 
rents  and  profits  thereof.  But  it  did  not  interfere  with  his 
common  law  right  to  the  custody  and  control  of  her  person 
and  to  her  earnings,  nor  did  it  expressly  vest  her  with  power 
to  dispose  of  the  property  without  his  co-operation.  Nor  did 
this  section  as  modified  by  the  Revised  Statutes  of  1846,  as 
above  stated,  give  the  wife  power  to  dispose  of  her  property, 
or  the  rents  and  profits  thereof,  or  to  remove  the  same  from  the 
premises  of  her  husband  without  his  consent  or  an  order  of  a 
court  of  competent  jurisdiction.  But  the  constitution  of  1850,9 
enlarged  her  powers  with  respect  to  the  disposition  of  her 
estate;  and  the  Married  Woman's  Act  of  1855,  entirely  abro- 
gated the  husband's  control  over  her  property  and  vested  her 
with  the  full  power  of  its  control  and  disposition,  and  super- 
seded sections  twenty-five,  twenty-six  and  twenty-seven  of 
chapter  eighty-five  of  the  Revised  Statutes  of  1846.10 

§382.    Alimony  Where  Wife  is  Deserted  or  Neglected  by  Hus- 
band. 

t 
The  statutes  of  this  state  make  provision  for  alimony  for  the 

support  and  maintenance  of  a  wife  whose  husband  has  deserted 
and  abandoned  her  without  sufficient  .cause,  without  a  decree 
of  divorce,  either  limited  or  absolute. 

In  1873  an  act  was  passed  entitled  "An  act  .to  provide  wtves 
with  property  and  maintenance  from  their  husbands'  estate 
when  neglected  or  deserted  by  them."  X1 

Sections  1  and  2  of  this  act  seem  to  have  been  superseded  by 
an  act  passed  in  1889  entitled  "An  act  to  provide  wives  with 
property  and  maintenance  from  their  husbands'  estates  when 
neglected  or  deserted  by  them,  or  when  the  husband  has  become 
an  habitual  drunkard,  or  has  practiced  extreme  cruelty  to- 
wards his  wife  or  committed  any  offense  sufficient  to  entitle  the 
wife  to  a  decree  of  divorce  or  separation."  12  This  act  super- 
sedes sections  1  and  2  of  the  act  of  1873,  but  does  not  repeal 
or  supersede  section  3  of  that  act.  The  exercise  of  the  authority 
conferred  by  the  act  of  1889  (Howell's  2nd  Ed.  11534),  is  not 

9.  Const.  1850,  Art.  16,  Sec.  5.       Ransom,  30  Mich.  329. 

10.  Tong  v.   Marvin,   15   Mich.  11.     C.   L.   1915,     (11482);     see 
60;    Hill   v.    Chambers,    30   Mich.  note;  Howell,  2nd  Ed.  §11531. 
422;    Brown    v.    Clark,    44    Mich.  12.     C.  L.  1915,  (11479)  ;  Howell, 
309,  6  N.  W.  R.  679;    Ransom  v.  2nd  Ed.  §11534. 

274 


HUSBAND    REQUIRED    TO    SUPPORT    WIFE  §383 

inconsistent  with  section  3  of  the  act  of  1873,  and  consequently 
that  section  is  si  ill  in  force.18 

§383.     When  Husband  May  be  Required  to  Support  Wife. 

The  statute  now  in  force  on  this  subject  provides  that: 
"Whenever  a  husband  shall,  without  good  and  sufficient  cause, 
desert  his  \\ifr.  or  shall  have  hereafter  deserted  his  wife  with- 
out good  and  sufficient  cause,  being  of  sufficient  ability  to 
support  her,  or  shall  have  become  an  habitual  drunkard  since 
the  marriage,  or  practised  extreme  cruelty  towards  her,  or 
committed  the  crime  of  adultery,  or  any  other  offense  that 
entitles  the  wife  to  a  decree  of  divorce  or  separation,  and  shall 
refuse  and  neglect  to  support  his  wife,  either  the  wife  or 
husband  being  a  resident  of  this  state,  the  Circuit  Court  in 
Chancery  of  any  county  in  this  State  in  which  said  husband 
or  wife  shall  reside,  shall,  on  application  of  the  wife  by  peti- 
tion, allot,  assign,, set  apart  and  decree  to  her  as  alimony  the 
use  of  such  part  of  the  husband's  real  and  personal  estate,  or 
such  proportion  of  his  earnings,  income  or  revenue  as  the  court 
may  determine,  in  its  discretion,  and  during  the  pending  of  the 
proceedings  may  require  the  husband  to  pay  such  sums  to  ca  IT  y 
on  the  proceedings,  or  for  her  support,  as  it  shall  deem  neces- 
sary, in  like  manner  as  provided  by  section  six  thousand  two 
hundred  and  thirty-five  of  Ho  well's  Statutes,  being  four  thou- 
sand seven  hundred  and  forty-five  of  the  compiled  laws  of 
eighteen  hundred  and  seventy -one,  in  case  of  suit  for  divorce : 
Provided,  That  no  decree  shall  be  made  in  favor  of  the  peti- 
tioner unless  on  the  hearing,  either  such  a  state  of  facts  shall 
appear  as  would  entitle  her,  as  far  as  the  husband's  wrongful 
acts  are  shown,  to  a  decree  for  divorce  upon  the  grounds 
specified  in  the  petition,  or  unless  such  a  state  of  facts  set  out 
in  the  petition  shall  be  proven  as  shall  make  it  appear  that  the 
respondent  has  deserted  the  petitioner  with  intent  to  leave  her 
without  good  and  sufficient  cause,  and  the  husband  shall  be 
permitted  to  allege  in  his  answer  to  the  petition  any  facts 
which  would  prevent  or  bar  a  divorce  upon  the  grounds  alleged 
in  said  petition  and  to  make  proof  of  the  same  in  conformity 
with  such  answer.  And,  provided,  further,  that  an  appeal  from 
the  liual  order  or  decree  may  be  taken  to  the  Supreme  Court  as 
in  (MiaiHciv  cases,  except  that  if  the  wife  shall  take  such 

13.     Tobey  v.  Tobcy,  100  Mich.  54,  58  N.  W.  R.  629. 

275 


§384  HUSBAND  AND  WIFE 

appeal  she  shall  not,  in  the  discretion  of  the  court,  be  required 
to  file  an  appeal  bond."  14 

§384.    Proceedings  and  Practice. 

Whenever  a  petition  is  filed  in  such  proceedings,  a  chancery 
summons  may  be  issued,  served  and  returned  as  in  ordinary 
chancery  cases,  and  if  upon  the  filing  of  the  petition,  or  the 
return  of  the  summons  unserved,  it  shall  be  made  to  appear 
that  the  husband  has  left,  or  is  out  of  the  state,  or  has  con- 
cealed himself  so  that  service  of  process  is  impossible,  the  court 
may  make  an  order  for  his  appearance  to  be  published  for  the 
same  time  and  in  the  same  manner  as  the  statute  provides  in 
chancery  suits  generally. 

.  If  upon  filing  such  petition,  it  shall  be  made  to  appear  to 
the  Circuit  Judge  that  the  husband  has  property,  real  or  per- 
sonal, credits,  stocks,  or  securities,  which  there  is  good  reason 
to  believe  he  will  dispose  of  to  avoid  the  decree  of  the  court, 
the  court  may  grant  an  injunction  restraining  the  sale  and 
incumbrance  of  such  property,  stocks  and  securities  and  the 
collection  of  such  credits,  and  notice  of  such  injunction  served 
upon  any  person  who  is  the  agent  of  the  husband  or  his  debtor, 
or  the  secretary  of  any  corporation  in  which  he  holds  stock,  or 
upon  the  register  of  deeds,  shall  enjoin  them  from  taking  any 
part  in  aiding  the  transfer  or  incumbrance  of  such  property 
and  from  the  payment  of  such  debts,  and  be  notice  to  any  and 
all  persons  to  whose  knowledge  it  shall  be  brought,  and  operate 
as  an  attachment  of  property  in  the  hands  of  that  person,  but 
such  injunction  shall  not  be  held  to  affect  the  duty  of  the 
register  of  deeds  to  record  any  deed  or  other  instrument,  prop- 
erly executed,  delivered  to  him  for  that  purpose. 

To  enforce  its  decree  the  court  may  cause  execution  to  be 
issud  and  levied  upon  any  of  the  husband's  estate  found  in  the 
state,  including  stock  in  any  corporation.  Where  chbses  in 
action  are  due  and  owing  to  the  husband  from  any  resident  of 
this  state  the  court  may,  upon  thirty  days'  notice  given  to  the 
defendant  personally,  if  he  is  a  resident,  and  by  publication  if 
he  is  concealed  or  a  non-resident,  once  in  each  week  for  said 
thirty  days  in  some  newspaper  published  in  the  county  in 
Avhich  such  action  is  pending,  order,  decree  and  direct  that  the 

14.  C.  L.  1915,  (11479) ;  Howell,  to  is  Section  8626  of  the  Compiled 
2nd  Ed.  §11534.  Section  6235  of  Sec.  of  1897,  and  Section  11465, 
Howell's  Statutes  above  referred  Howell's  Statutes  2nd  Edition. 

276 


r.\i:i:  AM>   crsToi.\    OK   CIIILKKKX  §385 

same  l»e  sold  in  the  same  manner  ;is  personal  chattels  are  sold 
upon  execution  from  courts  of  record.16 

§385.     Care    and    Custody    of    Children. — Allowance    May    be 
Changed. 

In  all  proceedings  brought  pursuant  to  the  statutory  pro- 
visions referred  to  in  the  two  preceding  sections,  the  court  may 
order  and  decree  concerning  the  care,  custody  and  maintenance 
of  the  minor  children  of  the  parties,  and  may  determine  with 
which  of  (lie  parties  the  children,  or  any  of  them,  shall  remain, 
and  (luring  the  pendency  of  the  proceedings,  may  assign  and 
decree  to  the  wife  the  possession  of  any  of  the  real  and  personal 
estate  of  the  husband,  and  the  court  may  decree  the  payment 
of  a  fixed  sum  of  money  for  the  support  of  the  wife  and  minor 
children,  and  may  provide  that  the  payment  of  the  same  be 
secured  upon  real  estate,  or  otherwise,  at  such  times  and  in 
such  manner  as  may  be  proper,  and  may  enforce  the  perform- 
ance of  such  decree  by  the  sale  of  the  real  estate  of  the  hus- 
band, or  otherwise,  as  may  be  necessary. 

The  court  has  pmver  at  all  times  to  change  the  allowance 
made,  from  time  to  time,  according  to  the  circumstances,  and 
may  revoke  such  allowance  altogether  on  satisfactory  proof  of 
a  voluntary  and  permanent  reconciliation.  The  allowance 
made  under  these  provisions  can  continue  only  during  the  joint 
lives  of  the  parties.10 

A  petition  or  bill  for  the  support  of  a  wife  separate  from 
her  husband  (will  only  be  sustained  when  the  reasons  for  it  are 
imperative.  If  the  court  is  satisfied  that  the  difficulties  be- 
tween the  parties  are  not  serious,  or  that  there  is  a  reason  to 
believe  that  such  difficulties  may  be  adjusted,  and  the  parties 
be  reconciled,  the  bill  should  be  dismissed. 

Especially  is  this  true  when  there  are  young  children  for 
whom  the  parties  ought  to  provide  a  home.17 

A  proceeding  of  this  character  must  be  based  upon  a  valid 
marriage  between  the  parties  to  the  suit,  and  such  marriage 
must  be  proven  the  same  as  in  an  action  for  divorce.18 

Eighteen  years  delay  in  suing  a  husband  for  support  where 

15.  C.  L.  1915,  (11480);  Howell,  17.     Davidson    v.    Davidson,    47 
2nd  Ed.  §11535.  Mich.  151,  10  N.  W.  R.  179.    - 

16.  C.  L.  1915,  (11483);  Howell,  18.    Clancy  v.  Clancy,  66  Mich. 
2nd  Ed.  J11533.  202.  33  N.  W.  R.  889. 

277 


§386  HUSBAND    AND    WIFE 

X 

tlie  wife  is  living  apart  from  him  is  fatal  to  the  suit  even  if 
the  wife  left  him  for  good  and  sufficient  cause.19 

§386.    Custody  of  Children  When  Husband  and  Wife  Separate. 

Where  a  husband  and  wife,  having  minor  children  separate, 
the  statute  provides  that  the  mother  shall  be  entitled  to  the 
care  and  custody  of  all  such  children  under  the  age  of  twelve 
years,  and  the  father  shall  be  entitled  to  the  care  and  custody 
of  all  such  children  of  the  age  of  twelve  years  or  over.  In 
such  case,  however,  the  Probate  Court  or  any  court  of  com- 
petent jurisdiction  may,  on  a  proper  application  and  hearing, 
make  and  enforce  such  order  or  orders  as  it  may  deem  just  and 
proper  as  to  the  care  and  custody  Of  such  minor  children, 
except  in  cases  where  an  order  or  decree  may  have  been  made 
by  any  court  in  chancery  regarding  such  children.20 

This  statute  will  not  be  construed  as  fixing  an  absolute 
right  to  the  care  and  custody  of  the  children  in  either  parent. 
It  simply  fixes  a  rule,  directory  only,  providing  which  parent 
may  be  given  the  care  and  custody  of  children  of  certain  ages, 
where  no  reason  is  made  to  appear  for  a  different  determina- 
tion. The  paramount  consideration  is,  what  is  really  demand- 
ed for  the  best  interests  of  the  children. 

Neither  of  the  parents  has  any  right  to  the  custody  of  a  child, 
if  such  qustody  would  seriously  militate  against  its  welfare. 
The  court  may  in  its  discretion  commit  the  custody  of  the  child 
or  children  to  either  parent.21 

§387.    Legal  Impediment  to  Marriage  as  Bar  to  Actions  for 
Damages. 

Prior  to  1905,  a  wife  who  sought  to  recover  damages  for 
negligent  injuries  to  her  husband  or  a  husband  who  sought  to 
recover  damages  for  negligent  injuries  to  his  wife  must  show  a 
legal  marriage  and  the  legal  relation  of  husband  and  wife  in 
order  to  maintain  such  action  for  damages.22 

In  1905,  the  legislature  passed  an  act  entitled  "An  act  ex- 

/ 

19.  Reed  v.  Reed,  52  Mich.  117,      2nd  Ed.  §11537. 

17  N.   W.   R.   720.     A  valid  mar-  21.     Corrie  v.   Corrie,  42  Mich, 

riage  and  the  relation  of  husband  509,    4   N.    W.    R.    213;    Klein   v. 

and     wife     are     prerequisites    to  *  Klein,  47  Mich.  518,  11  N.  W.  R. 

such  proceedings.    Judson  v.  Jud-  367;    In   re  Knott,   162   Mich.   10, 

son,  171  Mich.  190,  137  N.  W.  R.  126  N.  W.  R.  1040. 

163.  22.     Philip  v.  Heraty,  135  Mich. 

20.  C.  L.  1915,  (11484) ;  Howell,  446,  99  N.  W.  R.  963. 

278 


PI   MSI  I. Mi:  NT    OF    HUSBAND    FOR   DESERTION  §388 

the  ri^ln  of  union  I'm-  damages  heretofore  or  hereafter 
sustained  ihronuh  the  negligent  act  or  omission  of  another, 
causing  death  or  injury  to  the  issue  of  the  marriage  relation 
and  to  the  party  thereto  entering  such  relation  in  good  faith, 
and  providing  damages  for  such  act  or  omission." 

The  text  of  this  act  provided  that  "in  any  action  for  damages 
heretofore  or  hereafter  sustained  by  either  party  to  the  mar- 
riage relation  or  the  issue  thereof,  arising  from  the  negligent 
act  or  omission  of  another,  causing  death  or  injury,  it  shall  be 
no  bar  to  such  action  that  legal  impediment  existed  to  the 
lawful  marriage  of  either  such  party,  at  the  time  the  marriage 
relation  was  assumed,  but  a  right  of  action  shall  exist  in  favor 
of  such  issue  and  the  party  to  suqh  relation  entering  the  same 
in  good  faith,  and  such  issue  and  pdrty  shall  be  entitled  to  the 
same  damages  as  though  such  impediment  had  not  existed."  : 
This  act  has  been  held  unconstitutional,  only  so  far  as  it  relates 
to  injury  or  death  occurring  prior  to  the  time  the  act  took 
effect.-4 

§388.    Punishment  of  Husband  for  Desertion. 

A  husband  who  deserts  Kis  wife,  and  any  person  who  deserts 
his  minor  children,  under  fifteen  years  of  age,  and  without  pro- 
viding proper  shelter,  food,  care  and  clothing  for  them,  is  guilty 
of  a  felony,  and  upon  conviction  may  be  punished  by  imprison- 
ment in  the  State  Prison  for  not  more  than  three  years  nor  less 
than  one  year;  or  by  imprisonment  in  the  county  jail  not  more 
than  one  year  and  not  less  than  three  months.  If  at  any  time 
before  sentence  the*defendant  shall  enter  into  ti  bond  to  the 
people  of  the  state  of  Michigan,  in  such  penal  sum  and  with 
such  surety  or  sureties  as  the  court  may  direct  and  fix,  condi- 
tioned that  he  will  furnish  his  wife  and  children  with  necessary 
and  proper  shelter,  food,  care  and  clothing,  the  court  may  sus- 
pend sentence.  If  such  bond  is  given  and  the  defendant  fails  to 
comply  with  its  conditions  he  may  be  ordered  to  appear  before 
the  court  and  show  cause,  if  any  exists,  why  sentence  should 
not  be  imposed,  and  the  court  may  then  pass  sentence,  or  for 
good  cause  shown  may  modify  the  order  and  take  a  new  bond 
or  undertaking,  and  further  suspend  sentence.25 

If  a  person  is  convicted  under  this  act  and  sentenced  to  a 

23.  P.    A.    1905,    Act.    No.    280,       473,   111   N.  W.   R.   93. 

Howell,  2nd  E.  §11538;  C.  L.  1915,          25.     1907,  No.  144,  Howell,  2nd 
( ).  Ed.  §11539;  C.  L.  1915,  (11484). 

24.  Philip  v.  Heraty,  147  Mich. 

279 


§388  HUSBAND    AND    WIFE 

term  of  imprisonment  in  either  of  the  state  prisons  or  in  the 
Detroit  House  of  Correction,  the  warden  of  the  prison  in  which 
such  person  is  confined,  or  the  Superintendent  of  the  Detroit 
House  of  Correction  shall,  at  the  end  of  each  we.ek  during  such 
term  of  imprisonment,  pay  over  to  the  proper  Superintendent 
of  the  Poor  the  sum  of  one  dollar  and  fifty  cents  per  week,  if 
there  be  only  a  wife,  and  fifty  cents  per  week  additional  for 
each  minor  child  under-  the  age  of  fifteen  years,  in  lieu  of  any 
earnings  of  such  person  while  an  inmate  of  the  State  Prison 
or  the  Detroit  House  of  Correction  under  such  sentence.  The 
sums  so  paid  are  to  be  expended  by  the  Superintendent  of  the 
Poor  for  the  care  and  support  of  the  wife  and  children  of  such 
person,  as  the  case  may  be.26 

On  the  hearing  of  any  complaint  under  this  statute  the  wife 
may  testify  against  the  husband  without  his  consent,  and  she 
may  make  th.e  complaint  in  the  first  instance,  although  the 
statute  does  not  in  express  terms  authorize  her  to  do  so.  The 
general  rule  that  one  who  is  a  competent  witness  and  has 
knowledge  of  the  facts  may  make  complaint  in  a  criminal 
case  permits  the  wife  to  be  the  complaining  witness  in  a  prose- 
cution against  her  husband,  instituted  under  the  provisions  of 
this  act.27 

Abandonment  or  desertion  as  used  in  this  act  means  to 
separate  from,  wrongfully,  without  intention  to  return  and 
resume  marital  relations,  and  it  is  wilful  abandonment  or 
desertion  without  just  cause  which  is  the  essence  of  the  offense. 
That  the  husband  is  unable  to  provide  for  his  family,  that  the 
wife  is  able  to  earn  a  living,  or  that  her  friends  or  relations 
will  keep  her  from  want  will  not  constitute  an  excuse  or  de-1 
fense  of  a  wilful  abandonment.  Neither  is  the  resulting  burden 
to  the  public  an  element  of  the  offense.28 

This  statute  does  not  violate  section  21  of  article  5  of  the 
Constitution,  which  provides  that  "No  law  shall  embrace  more 
than  one  object,  which  shall  be  expressed  in  its  title." 

26.  1907,  No.  144,   §2;    Howell,  557,  121  N.  W.  R.  497;   People  v. 
2nd.  Ed.  11540;  C.  L.  1915,  ( ).  Malsch,   119  Mich.   112,  77  N.  W. 

27.  People  v.  Stickle,  156  Mich.  R.    638;    Warner    v.    Warner,    54 
558,   121  N.   W.   R.   497;    State  v.  Mich.  492,  20  N.  W.  R.  557;  Place 
Giles,  101  Me.  349;  State  v.  Wood-  v.  Place,  139  Mich.  509,  102  N.  W. 
mansee,    19    R.    I.    651;    State    v.  R.    996;   Johnson   v.  Johnson,   125 
Newberry,  48  Mo.   429;    People  v.  Mich.  671,  85  N.  W.  R.  94;   Rose 
Sebring,   66   Mich.   705,  •  33  N.   W.  v.  Rose,  50  Mich.  92,  14  N.  W.  R. 
R.  808.  711;   Cox  v.  Cox,   35  Mich.  46. 

28.  People  v.  Stickle,  156  Mich. 

280 


CERTAIN   win:  M:SI:I:TIO.\ 


The  provision  of  section  one  of  the  act  authorizing  the  court 
to  suspend  sentence  confers  no  new  power  upon  the  coin-is,  and 
it  c;iuiiol  IK-  construed  ;is  giving  to  the  courl  ;i  pardoning 
power  which  belongs  exclusively  to  the  executive  branch  of 
state  government.  The  power  to  suspend  sentence  and  the 
power  to  grant  reprieves  and  pardons  are  distinct  :md  dif- 
ferent in  origin  and  nature." 

The  power  of  courts  to  suspend  sentence  has  always  been 
considered  a  judicial  function.  It  was  exercised  long  before 
the  adoption  of  the  first  constitution  of  the  state  and  has 
frequently  been  exercised  since.20 

§389.     Certain  Wife  Desertion — Felony^-Limitations. 

The  statute  also  provides  that  "Any  man  or  boy  who  marries 
a  woman  or  girl  for  the  purpose  of  escaping  prosecution  for 
rape,  bastardy,  or  seduction,  and  shall  afterwards  desert  her 
without  good  cause,  shall  be  deemed  guilty  of  a  felony,  and 
shall,  upon  conviction,  be  fined  not  more  than  one  thousand 
dollars,  or  be  imprisoned  in  the  state  prison  for  not  more  than 
•three  years:  /Vor/V/rr/,  That  no  prosecution  shall  be  brought 
under  this  act  after  live  years  from  the  date  of  the  manage." 

Neither  this  statute  nor  Act  No,  144  of  the  Public  Acts  of 
1!»07  are  applicable  to  a  desertion  before  the  law  took  effeci. 


29.  Hawk.  P.  C.  Ch.  51,  §8; 
Bishop  Crim  Proc.  (2nd  ed.)  Sec. 
1124;  4  Blackstone,  Chap.  31; 
Commonwealth  v.  Dowdigan,  115 
Mass.  136;  Weaver  v.  People,-  33 
Mich.  296;  People  v.  Reilly,  53 
Mich.  260,  18  N.  W.  R.  849;  Peo- 
ple ex.  rel.  Forsyth  v.  Court  of 
Sessions,  1  41  N.  Y.  288,  in  which 
it  is  said:  "The  suspension  of  the 
sentence  simply  postpones  the 
judgment  of  the  court  temporarily 
or  indefinitely,  but  the  conviction 
and  liability  following  it,  and  all 
civil  disabilities,  remain  and  be- 
come operative  when  judgment  is 


rendered. 

A  pardon  reaches  both  the  pun- 
ishment prescribed  for  the  of- 
fense and  the  guflt  of  the  offend- 
er. It  releases  the  punishment 
and  blots  out  v  of  existence  the 
guilt  of  the  offender  so  that  in  the 
eye  of  the  law  he  is  as  innocent 
as  if  he  had  never  committed  the 
offense.  People  v.  Stickle,  156 
Mich.  564,  121  N.  W.  R.  497. 

30.  P.  A.  1907,  Act  No.  284, 
Howell,  2nd"  Ed.  §1154;  C.  L.  1919, 


31.    People     v.     Albright, 
Mich.  400,  126  N.  W.  R.  432. 


161 


281 


PART  FOUR. 
PLEADING  AND  PRACTICE. 


PART  FOUR— PRACTICE  AND  PLEADING; 

Chapter      XXXIII.     Suits  for  Divorce. 

Chapter      XXXIV.     Bringing  the  Defendant  into  Court. 

Chapter        XXXV.     Proceedings    after    Appearance    of    De- 
fendant. 

Chapter      XXXVI.     Proceedings  after  Issue  Joined  or  De- 
fault Entered. 

Chapter    XXXVII.     Other  Interlocutory  Proceedings. 
Chapter  XXXVIII.     Motions  and  Affidavits. 
Chapter      XXXIX.     Hearing  and  Decree. 

(Chapter  XL.     Powers  and  Duties  of  Prosecuting  At- 

torneys in  Divorce  Cases. 

Chapter  XLI.     Appeals  to  Supreme  Court. 


< -HAITI:!;  xxxiri. 

SUITS  FOR  DIVORCE. 

§390.  Jurisdiction. 

§391.  The  Bill  of  Complaint. 

§392.  Defendant's  Domicile. 

§393.  Minor  Children. 

§394.  Causes   for  Divorce — Adultery — Extreme  Cruelty. 

§395.  Physical  Incompetency. 

§396.  Sentence  to  Imprisonment — Desertion. 

§397.  Habitual  Drunkenness — Divorce  in  Another  State. 

§398.  Failure  of  the  Husband  to  Support  the  Wife. 

§399.  General  Form  of  the  Bill. 

§400.  Verification  of  Bills  for  Divorce. 

§401.  Divorce  Suits — How   Commenced    and   Conducted. 

§402.  Suit  to  Annul  Marriage — How  Brought. 

§403.  Form  of  Bill  to  Annul  Marriage.   • 

§404.  Suits  to  Affirm  a  Marriage. 

§390.    Jurisdiction. 

Suits  for  divorce  must  be  commenced  in  the  circuit  court 
for  the  county  where  the  parties  or  one  of  them  resides.  The 
statute  provides  that  a  divorce  from  the  bonds  of  matrimony 
may  be  decreed  by  the  circuit  court  of  the  county  where  the 
parties,  or  one  of  them,  resides,  or  by  the  court  of  chancery, 
upon  application  by  bill  or  petition  of  the  aggrieved  party. 
It  appears  to  be  the  universal  practice,  to  commence  divorce 
suits  in  the  court  of  chancery  by  bill  of  complaint. 

§391.    The  Bill  of  Complaint. 

The  bill  of  complaint  should  be  addressed  to  the  circuit 
court  in  chancery'  of  the  county  where  the  suit  is  commenced. 
The  names  and  places  of  residence  of  both  plaintiff  and  defend 
ant   should  be  stated,  so  that  the  court  may  know  from  the 
allegations  of  the  bill  whether  or  not  it  has  jurisdiction  of 
the  parties.     The  party  applying  -for  the  divorce  should  be 
designated  plaintiff,  and  the  party  against  whom  the  apj»li<  a 
tion  is  made  should  be  designated  defendant.2 

1.  C.  L.  1915,  (11397);  Howell,       mins  &  Beecher's  Mich  Judicature 
2nd  ed.  §11458.  Act,   §475. 

2.  C.   L.    1915,    (12352);    Cum- 

285 


§392  SUITS    FOR    DIVORCE 

The  bill  should  also  state  the  length  of  time  the  plaintiff 
has  resided  in  the  state.  Unless  the  marriage  was  solemnized 
in  this  state,  the  plaintiff  must  have  resided  in  the  state  one 
full  year  before  commencing  suit,  and  that  fact  must  be  stated 
in  the  bill.  If  the  marriage  was  solemnized  in  this  state,  the 
bill  must  show  that  the  plaintiff  has  resided  in  the  state  one 
year  or  more  next  preceding  the  time  of  filing  the  bill,  or  con- 
tinuously since  the  marriage. 

If  the  cause  for  divorce  charged  in  the  bill  occurred  out  of 
the  state,  the  bill  must  show  that  the  plaintiff  or  defendant, 
one  or  both  of  them,  have  resided  in  this  state  for  the  period 
of  two  years  immediately  preceding  the  filing  of  the  bill.3 

§392.    Defendant's  Domicile. 

The  bill  should  also  state  that  the  defendant  was  domiciled 
in  this  state  at  the  time  it  was  filed,  or  that  he  was  domiciled 
in  the  state  at  the  time  the  cause  of  action  arose.  If  at  the 
time  of  filing  the  bill  the  defendant  has  a  domicile  in  another 
state  or  country,  such  domicile  should  be  stated  in  the  bill  if 
known  to  the  plaintiff.* 

§393.    Minor  Children. 

If  one  or  more  minor  children  of  the  marriage  are  living  at 
the  time  of ,  filing  the  bill,  such  fact .  must  be  stated  in  the 
bill,  and  the  name,  age,  and  place  of  residence  of  each  given. 
Although  not  absolutely  necessary,  it  is  proper  and  advisable 
to  state  in  the  bill  in  whose  custody  the  minor  children  are. 

If  the  plaintiff  desires  the  custody  and  control  of  the  minor 
children  of  the  marriage  it  should  be  so  stated  in  the  bill. 

§394.    Causes  for  Divorce — Adultery — Extreme  Cruelty. 

The  grounds  or  causes  for  divorce,  for  which  a  decree  is 
sought,  should  be  clearly  and  concisely  stated  in  the  bill,  and 
it  must  be  for  some  cause  provided  for  by  the  statute. 

If  the  charge  made  by  the  plaintiff  is  extreme  cruelty,  it  is 
not  enough  to  state  in  the  language  of  the  statute  that  the 
defendant  has  been  guilty  of  extreme  cruelty  toward  the  plain- 
tiff. The  bill  should  state  the  particular  acts,  conduct  or  lan- 
guage which  it  is  claimed  constitute  cause  for  divorce,  and, 
with  reasonable  particularity,  the  time  and  place  of  their  oc- 
currence. 

3.  C.  L.  1915,  (11400) ;  Howell,  4.  C.  L.  1915,  (11400) ;  Howell, 
2nd  ed.  §11461.  2nd  ed.  §11461. 

286 


si:\Ti:\ri:  T<>  i M I-KISO.N . \IKNT  §39G 

I!'  Hit-  charge  made  is  adultery,  the  bill  should  state  the 
tunic  of  ilic  person  with  whom  the  adultery  is  alleged  to  have 
been  commit  led,  it  known,  and  the  time  when  and  the  place 
where  the  act  was  committed.1  The  hill  must  also  allege  that 
the  plaintiff  lias  never  been  guilty  of  adultery. 

In  proceedings  for  divorce  on  the  ground  of  adultery,  in- 
flexible adherence  must  he  observed  to  the  forms  and  practice 
prescribed  for  the  attainment  of  justice  in  courts  of  equity.0 

An  allegation  is  suflicient  that  states  that  the  defendant 
lives  "in  open  and  notorious  adultery,"  naming  the  time,  place, 
and  name  of  the  partv  with  whom  the  adultery  is  alleged  to 
have  been  committed.7 

If  the  name  of  the  person  with  whom  the  defendant  is  al- 
leged to  have  committed  the  adultery  is  unknown  to  the  plain- 
tiff and  cannot  be  ascertained,  that  fact  should  be  stated  in 
the  bill,  and  the  particular  act  complained  of  identified  by 
such  circumstances  of  time  and  place  as  will  enable  the  de- 
fendant to  know  with  reasonable  certainty  the  particular  act 
charged.  An  allegation  supported  by  proof  of  a  single  act  of 
adultery  is  sufficient,  and  the  charge  may  be  proved  by  circum- 
stantial evidence.8 

§395.    Physical  Incompetency. 

If  the  cause  for  divorce  alleged  in  the  bill  is  physical  in- 
competency,  it  must  be  stated  that  the  plaintiff  did  not  know 
of  such  in  competency  at  the  time  of  the  marriage.  The  bill 
should  also  state  the  particular  character  of  the  alleged  physi- 
cal  incompetency  or  im potency  alleged ;  that  the  same  still 
exists  at  the  time  of  filing  the  bill;  that  it  is  incurable;  and 
that  it  makes  the  defendant  incapable  of  consummating  the 
marriage  by  sexual  intercourse. 

§396.    Sentence  to  Imprisonment — Desertion. 

A  bill  asking  for  a  divorce  on  the  ground  that  the  defend- 
ant has  been  sentenced  to  imprisonment  for  three  years  or 
more  should  state  the  court  which  imposed  the  sentence,  the 
length  of  time,  and  the  prison,  jail  or  house  of  correction  to 
which  the  defendant  was  sentenced. 

5.    Dunn  v.  Dunn,  11  Mich.  284;  6.      Green    v.    Green,    26    Mich. 

Shoemaker  v.  Shoemaker,  20  Mich.  440. 

222;  Bennett  v.  Bennett,  24  Mich.  7.     Marble  v.  Marble,  36  Mich. 

482;    Green    v.    Green,    26    Mich.  386. 

437;  Randall  v.  Randall,  31  Mich.  8.     Marble  v.   Marble,  36  Mich. 

194;  Herrick  v.  Herrick,  31  Mich.  386. 
298. 

287 


§397  SUITS   FOR  DIVORCE 

If  the  cause  for  which  divorce  is  sought  is  desertion,  it  is 
not  sufficient  to  allege  simply  that  the  defendant  deserted  the 
plaintiff  at  a  particular  time  and  place.  The  plaintiff  must 
allege  specifically  that  the  desertion  or  abandonment  was  wil- 
ful and  intentional:  that  it  was  without  cause;  that  it  was 
against  the  wish  of  the  plaintiff;  and  that  it  has  continued 
uninterruptedly  for  the  period  of  two  years  or  more  next  pre- 
ceding the  time  of  filing  the  bill.9  In  other  words,  the  bill 
must  show  a  total  cessation  of  cohabitation  for  the  period 
of  two  years  or  more,  an  intent  on  the  part  of  the  defendant 
to  desert  the  plaintiff,  and  a  separation  against  the  will  of  the 
plaintiff:  and  that  such  separation  was  without  cause.10 

§397.     Habitual  Drunkenness : — Divorce  in  Another  State. 

A  bill  which  claims  a  decree  of  divorce  on  the  ground  that 
the  defendant  has  become  an  habitual  drunkard  must  show 
that  he  has  become  an  habitual  drunkard  since  the  marriage. 
The  statutory  provision  is  that  an  absolute  divorce  may  be 
granted  "when  the  husband  or  wife  has  become  an  habitual 
drunkard."11  In  such  case  the  plaintiff  should  allege  speci- 
fically that  the  defendant  has  become  an  habitual  drunkard 
since  the  marriage  was  solemnized,  or  if  he  was  an  habitual 
drunkard  before  the  marriage,  it  must  be  shown  that  such 
fact  was  concealed  from,  or  at  least  unknown  to,  the  plaintiff 
at  the  time  of  the  marriage.12 

If  the  application  is  made  on  the  ground  that  the  defend- 
ant has  obtained  a  divorce  in  another  state  or  country,  the  bill 
must  show  that  the  plaintiff  is  a  resident  of  this  state,  and 
also  show  the  state  or  conn  try  and  the  court  in  which  such 
divorce  was  granted.13 

§398.    Failure  of  the  Husband  to  Support  the  Wife. 

The  statute  provides  that  a  divorce  from  bed  and  board 
forever,  or  for  a  limited  time,  may  be  decreed  "on  the  com- 

9.  C.  L.  1915,  (11397);  Howell,       14  N.  W.  R.  696;  Ru'dd  v.  Rudd, 
2nd  ed.  §11458,  Sub.  4;  Warner  v.       33  Mich.  101. 

Warner,   54    Mich.   492,   20  N.  W.  11.     C.  L.  1915,  (11397) ;  Howell, 

R.     557;     Wright    v.    Wright,    80  2nd  ed.  §11458,   Sup.  5. 

Mich.  572,  45  N.  W.  R.  365.  12.     Porritt  v.  Porritt,  16  Mich. 

10.  Rose  v.  Rose,  50  Mich.  92,  441. 

14  N.  W.  R.  711;  Cooper  v.  Cooper,          13.     C.  L.  1915,  (11397) ;  Howell, 

17  Mich.    210;   Porritt  v.  Porritt,      2nd  ed.  §11458,  Sub.  6;  People  v. 

18  Mich.  424;  Cox  v.  Cox,  35  Mich.       Dawell,  25  Mich.  254. 
463;   Seller  v.  Beller,  50  Mich.  51, 

288 


•    <;i: \KK.\I.  KOKM   or  THI:  MILL  §3U9 

plaint  of  the  wife,  when  the  husband,  being  of  snllicient  ability 
to  provide  a  suitable  maintenance  for  his  wife,  shall  grossly. 
or  wantonly  and  cruelly,  refuse  or  neglect  to  do  so."14  The 
next  section  of  tlie  statute  provides  that  a  divorce  from  the 
bonds  of  matrimony,  or  an  absolute  divorce,  may  be  decreed 
for  the  same  cause  "whenever  in  the  opinion  of  the  court  the 
circumstances  of  the  case  shall  be  such  that  it  will  be  discreet 
and  proper  so  to  do;  but  no  divorce  from  the  bonds  of  matri- 
mony for  either  of  the  causes  mentioned  in  the  preceding  sec- 
tion shall  be  entered  in  any  case  where  the  same  is  not  asked 
for  by  the  plaintiff  in  the  bill  of  complaint  filed  therein,  or  by 
the  defendant  in  a  cross-bill,  unless  the  court  hearing  the  evi- 
dence shall  deem  it  for  the  best  interest  of  the  parties  to  grant 
a  divorce  from  the  bonds  of  matrimony,  and  in  that  event  the 
court  may  grant  such  divorce."15 

The  bill  in  such  a  case  should  allege  that  the  husband  is  of 
sufficient  ability  to  support  his  wife  and  provide  a  suitable 
maintenance  for  her;  and  it  should  state  such  facts  as  to  the 
pecuniary  circumstances  of  the  husband  as  will  have  a  ten- 
demy  to  show  such  ability.  It  is  sufficient  if  the  bill  alleges 
the  neglect  and  refusal,  in  the  language  of  the  statute,  but  the 
ability  of  the  husband  should  be  shown  by  stating  such  facts 
as  will  enable  the  court  to  determine  whether  or  not  such 
ability  exists,  if  the  facts  alleged  are  true.16 

If  the  bill  is  filed  for  the  purpose  of  procuring  a  divorce 
from  bed  and  board,  or  limited  divorce,  the  prayer  of  the  lull 
should  so  state,  and  if  a  divorce  from  the  bonds  of  matri- 
mony is  desired  it  should  be  expressly  stated  in  the  prayer  for 
relief.17 

§399.     General  Form  of  the  Bill. 

In  divorce  cases  the  general  frame  or  form  of  the  bill,  with 
a  few  exceptions,  is  the  same  as  in  other  chancery  cases. 

The  preparation  and  filing  of  the  bill  of  complaint  is  tin- 
first  step  in  the  suit.  The  bill  must  be  addressed  to  the  circuit 
court  for  the  proper  county,  in  chancery,  and  must  be  signed 
by  the  plaint  ill'  or  his  agent  or  attorney.  It  must  be  divided 
into  paragraphs,  numbered  consecutively,  and  each  paragraph 
should  contain,  as  nearly  as  may  be,  a  separate  and  distinct 

14.  C.  L.  1915,  (11398) ;  Howell.  16.     Brown  v.  Brown.  22  Mich. 
2nd  ed.  511452.                                        245;   Ward  v.  Ward,  20  Wis.  252. 

15.  C.  L.  1915,  (U399) ;  Howell,  17.     C.  L.  1915,  (11399) ;  Howell, 
ed.  §11460.                                         2nd  ed.  11460. 

•289 


§400  SUITS    FOR    DIVORCE 

allegation.  The  prayer  must  also  be  divided  into  paragraphs, 
numbered  consecutively,  and  must  specify  the  particular  relief 
to  which  the  plaintiff  considers  himself  entitled,  and  may  also 
contain  a  prayer  for  general  relief. 

The  prayer  for  process  to  bring  the  defendant  into  court,  . 
formerly  required,  may  be  omitted,  and  the  plaintiff  is  entitled 
to  such  process  on  filing  the  bill,  and  to  other  necessary  pro- 
cess when  ordered  by  competent  authority.  If  the  plaintiff 
desires  a  temporary  or  permanent  injunction  to  be  issued,  the 
bill  should  state  the  facts  authorizing  the  writ  and  pray  that 
it  may  be  issued,  and  if  temporary  or  preliminary  relief  is 
desired  by  way  of  injunction,  the  judge  of  the  court  must 
endorse  on  the  bill  an  order  for  that  purpose.  A  bill  of  com- 
plaint which  does  not  comply  with  the  rule  in  respect  to  being 
divided  into  paragraphs,  numbered  consecutively,  will  be 
stricken  from  the  files  on  motion,  unless  the  court  in  its  dis- 
cretion shall  deem  it  proper  to  allow  an  amendment  to  cure 
the  defect. 

Good  pleading  also  requires  that  needless  repetition,  such 
as  "and  the  plaintiff  further  shows  unto  the  court,"  should  be 
avoided.18 

§400.     Verification  of  Bills  for  Divorce. 

All  bills  for  divorce  are  required  to  be  verified  by  the  oath  / 
of  the  plaintiff,  or  in  the  case  of  his  absence  from  the  state, 
or  other  sufficient  cause  shown,  by  the  oath  of  his  agent,  at- 
torney or  counsellor.  The  several  matters  stated  in  the  bill 
should  be  stated  positively,  or  upon  information  and  belief 
only,  as  the  fact  may  be. 

The  oath  administered  to  the  party  must  be,  in  substance, 
that  he  has  read  the  bill,  or  has  heard  it  read,  and  knows  the 
contents  thereof,  and  that  the  same  is  true  of  his  own  knowl- 
edge, except  as  to  the  matters  which  are  therein  stated  to  be 
upon  his  information  and  belief,  and  as  to  those  matters  he 
believes  it  to  be  true;  and  the  substance  of  the  oath  must  be 
stated  in  the  jurat.19 

The  oath  must  also  contain  the  following:  "And"  you  do 

18.     New  Mich.  C.  C.  Rules,  No.  R.    1063;    Southern    v.    Byles,    67 
24.      Among    the    cases    having    a  Mich.  296,  34  N.  W.  R.  702. 
bearing  on  this  subject,  but  which          19.     C.   C.   Rule   No.   27;    Gum- 
do  not   particularly   construe  the  mins  &  Beecher's  Mich.  Rule  Book 
rule  are  the  following:    Spring  v.  page  602. 
Randall,   107  Mich.  103,  64  N.  W. 

290' 


SUIT  TO  ANNTl.  .\lAi;i:i.\(,i:  §402 

solemnly  s\vear  i  or  atlirm  i  that  there  is  no  rollusiou,  under- 
standing or  agreement  whatever,  between  yourself  and  tilt- 
defendant  herein,  in  relation  to  your  application  for  a  di- 
vorce."20 This  provision  is  mandatory  and  is  based  on  public 
policy,  which  forbids  divorce  by  agreement  of  the  parties.21 

The  bill  must  allege,  on  oath,  that  the  causes  for  divorce 
charged  were  all  committed  without  the  consent,  connivance, 
privity  or  agreement  of  the  plaintiff;22  hence  if  any  fact  is 
introduced  into  the  bill  by  way  of  amendment,  to  meet  this 
requirement  the  bill  must  be  sworn  to  again.23 

A  divorce  will  not  be  granted  where  the  plaintiff  is  guilty 
of  the  same  crime  or  misconduct  as  that  charged  against  the 
defendant;  therefore  the  bill  should  allege  that  the  plaintiff 
has  not  been  guilty  of  any  such  crime  or  misconduct  as  is 
charged  against  the  defendant.24 

§401.     Divorce  Suits  -How  Commenced  and  Conducted. 

Suits,  for  divorce  and  suits  to  annul  or  affirm  a  marriage 
are  commenced  and  conducted  practically  in  the  same  manner 
as  other  suits  in  courts  of  equity,  and  the  court  has  power 
to  award  issues,  to  decree  costs  and  to  enforce  its  orders  and 
decrees  to  the  same  extent  and  in  the  same  manner  as  in  other 
causes. 

§402.     Suit  to  Annul  Marriage — How  Brought. 

When  a  marriage  is  supposed  to  be  void,  or  there  arises 
doubt  as  to  its  validity,  either  party  may  file  a  bill  in  the  cir- 
cuit court  for  the  county  where  the  parties  or  one  of  them 

20.  C.  L.  1915,  (11401);  Howell,  risen,   64  Mich.   53,   30  N.  W.   R. 
2nd  ed.  §11462.  93,  Minde  v.  Minde,  65  Mich.  633, 

21.  Thompson  v.  Thompson,  70  32   N.  W.  R.  868;    Peck  v.    Peck, 
Mich.  62,  37  N.  W.  R.  710;  Ayres  66    Mich.   586,   33   N.   W.  R.   893; 
v.  Wayne  Circuit  Judge,  90  Mich.  Sissung  v.  Sissung,  65  Mich.  179, 
380,  fcl  N.  W.  R.  461;  McWilliams  31  N.  W.  R.  770;  Kellog  v.  Kellog, 
v.   Circuit   Judge,   142    Mich.   226.  171  Mich.  518,  137  N.  W.  R.  249. 
105  N.  W.  R.  611.  25.     C.  L.  1915,  (11403);  Howell, 

22.  Briggs  v.  Briggs,  20  Mich.  2nd  ed.  §11464;  Sawyer  v.  Sawyer, 
40.  Walk.   Ch.   48;    Entry    of    Decree 

23.  Green    v.    Green,    26    Mich.  Nunc  pro  Tune;  Newton  v.  New- 
437.  ton,  166  Mich.  421,  132  N.  W.   R. 

24.  C.  L.  1915,  (11401);  Howell,  91.     Modification  of  Decree:  Mey- 
2nd   ed.   811462;    Warner   v.   WFT-  era  v.  Meyers,  161  Mich.  48?,  126 
ner,   54   Mich.    494,   20   N.    W.    R.  N.  W.  R.  841.   Amendment  of  Bill. 
557;   Hoff   v.    Hoff,   48  Mich.   281,  Schafberg  v.   Schafberg,  52  Mich. 
12  N.  W.  R.  160;  Morrison  v.  Mor-  421,  18  N.  W.  R.  202. 

291 


§404  SUITS  FOR  DIVORCE 

resides,  or  in  the  court  of  chancery,  for  annulling  the  same. 
The  bill  is  required  to  be  filed,  and  proceedings  had  thereon, 
substantially  the  same  as  in  the  case  of  a  bill  filed  in  the  same 
court  for  a  divorce,  and  upon  due  proof  of  the  invalidity  of 
the  marriage  it  will  be  declared  void  by  a  decree  or  sentence 
of  annulment.26 

But  no  marriage  can  be  annulled  on  the  ground  of  force  or 
fraud,  if  it  is  made  to  appear  that  at  any  time  before  the 
commencement  of  the  suit  the  parties  have  voluntarily  co- 
habited as  husband  and  wife.27  Nor  can  the  marriage  *of  a 
lunatic  be  decreed  to  be  void,  if  it  is  made  to  appear  that  the 
parties  freely  and  voluntarily  cohabited  as  husband  and  wife 
after  the  lunatic  was  restored  to  a  sound  mind.27 

§403.     Form  of  Bill  to  Annul  Marriage. 

The  formal  parts  of  a  bill  to  annul  a  marriage  are  sub' 
stantially  the  same  as  a  bill  for  divorce.  If  any  children  have 
been  born  of  the  supposed  void  marriage  their  names  and  ages 
should  be  stated  substantially  the  same  as  in  a  bill  for  divorce. 
If  the  bill  is  filed  by  the  wife  it  should  be  in  the  name  which 
she  bore  prior  to  the  marriage.  And  it  would  seem  that  if 
the  bill  is  filed  by  the  husband  to  annul  a  void  marriage  it 
should  be  against  the  wife  in  the  name  by  which  she  was 
known  prior  to  the  marriage. 

The  reasons  which  are  supposed  to  make  the  marriage  void 
should  be  clearly  and  distinctly  stated  in  the  bill,  and  they 
must  be  such  as  the  statute  specifically  mentions  as  sufficient 
to  render  the  marriage  void.  No  presumption  against  the 
validity  of  the  marriage  can  be  indulged. 

No  action  can  be  brought  to  annul  a  marriage  on  the 
ground  of  the  physical  incapacity  of  one  of  the  parties  unless 
brought  within  two  years  from  the  solemnization  of  the  mar- 
riage, and  such  suit  can  be  maintained  only  by  the  injured 
party.28 

§404.     Suits  to  Affirm  a  Marriage. 

A  bill  to  affirm  a  marriage  may  be  filed  when  the  marriage 
is  denied  or  doubted  by  one  of  the  parties.  The  bill  must  be 
filed  by  the  party  who  asserts  the  validity  of  the  marriage. 

26.*  C.  L.  1915,  (11395)  ;,Howell,          27.     C.  L.  1915,  (11427) ;  Howell, 
2nd  ed.  §11455,  C.  L.  '97,   (8649);       2nd  ed.  §11485. 
Howell,  2nd  ed.  §11486.  28.     C.  L.  1915,  (11427)  ;  Howell, 

2nd  ed.  §11488. 

292 


SUITS    TO   AFFIRM    A    MARRIAGE  §404 

The  bill  is  filed  and  the  proceedings  had  thereon  in  the  same 
manner  as  in  divorce  and  annulment  cases.  Upon  satisfactory 
proof  of  the  validity  of  the  marriage,  the  court  will  make  a 
decree  declaring  the  marriage  valid,  and  unless  reversed  on 
appeal,  such  decree  is  conclusive  upon  all  persons  concerned 
or  interested.29 

The  bill  should  state  the  nanies^  ages  and  places  of  residence 
of  the  parties,  the  date  of  the  marriage,  the  place  where  and 
the  manner  in  which  the  marriage  was  solemnized,  substanti- 
ally the  same  as  in  a  bill  for  divorce.  If  children  have  been  born 
of  the  marriage  their  names  and  ages  should  be  stated.  The 
fact  that  the  defendant  denies  the  validity  of  the  marriage 
must  be  stated,  and  the  time,  place  and  occasion  of  such 
denial  should  be  made  known  to  the  court  by  the  allegations 
of  the  bill.  If  the  plaintiff  bases  his  claim  upon  a  valid  mar- 
riage in  another  state,  solemnized  in  the  form  prescribed  by 
the  statute  of  that  state,  the  bill  should  state  the  time  when, 
the  place  where,  and  the  person  by  whom  the  marriage  was 
solemnized,  and  the  official  capacity  of  the  person  who  per- 
formed the  ceremony.  If  tli<-  claim  is  based  upon  a  valid  com- 
mon law  marriage,  the  bill  must  state  that  at  a  certain  time 
and  place,  naming  them,  the  parties  presently  promised  and 
agreed  to  take  each  other  for  husband  and  wife,  and  to  live 
together  in  that  relation,  and  that  in  pursuance  of  that  aui  ••»• 
nic-iit,  and  for  the  purpose  of  consummating  the  same,  they 
actually  did  live  and  cohabit  as  husband  and  wife.80 

29.  C.  L.  1915,  (11395) ;  Howell,  30.  Judson  v.  Judson,  147 
2nd  ed.  §11456.  Mich.  518,  111  N.  W.  R.  78. 


293 


CHAPTER  XXXIV. 

BRINGING  THE  DEFENDANT  INTO  COURT. 

§405.  Summons — Form  and  Contents. 

§406.  Summons — How  and  When  Served. 

§407.  Substituted  Service. 

§408.  Affidavit  for  Order  of  Publication. 

§409.  Form  of  Affidavit. 

§410.  Appearance  of  the  Defendant. 

§405.     Summons — Form  and  Contents. 

Upon  filing  the  bill  of  complaint  in  the  office  of  the  clerk  of 
the  court,  and  paying  an  entry  fee  of  three  dollars,  the  plain- 
tiff is  entitled  to  a  chancery  summons,  and  to  other  process 
when  ordered  by  competent  authority.1  The  summons  must 
notify  the  plaintiff  that  a  bill  of  complaint  has  been  filed 
against  him  by  the  plaintiff,  naming  him,  and  that  if  he  de- 
sires to  defend  the  same  he  is  required  to  cause  his  appearance 
to  be  filed  in  the  cause,  in  accordance  with  the  rules  and  prac- 
tice of  the  court,  and  the  statute  in  such  case  made  and  pro- 
vided, in  person  or  by  attorney,  within  fifteen  days  after  ser- 
,  vice  of  the  summons  upon  him ;  and  the  return  day  thereof 
must  be  indicated  at  the  foot  of  the  summons.  The  under- 
writing must  designate  against  which  defendant  a  personal 
decree  is  asked,  and  in  divorce  cases  the  underwriting  must 
state  whether  alimony  or  custody  of  children  is  prayed  for 
in  the  bill.2 

§406.    Summons — How  and  When  Served. 

The  summons  must  be  served  by  delivering  a  copy  to  the  de- 
fendant, subscribed  by  the  plaintiff,  his  attorney,  or'tlie  officer 
or  person  serving  the  same,  and  inscribed  "copy,"  and  show- 
ing the  original  under  the  seal  of  the  court  to  the  defendant 
at  the  time  of  such  delivery.  The  service  may  be  on  or  before 

1.  C.   L.    1915,    (12408) ;    Cum-  Book,   page   584.     The  writ   may 
mins  &  Beechers  Mich.  Judicature  be  signed  by  the  deputy  clerk  in 
Act    §531.  his  own  name;   Colton  v.  Rupert, 

2.  C.    C.    Rules    1916,    No.    19;  60   Mich.    320,   27   N.   W.   R.    520; 
Cummins  &  Beecher's  Mich  Rule  Calender  v.  Olcott.  1  Mich.  344. 

294 


SUBSTITUTED    SERVICE  §407 

the  return  day  mentioned,  but  not  afterwards.3  It  may  be 
served  by  any  sheriff,  under  sheriff  or  deputy  sheriff,  or  by 
any  person  of  suitable  age  and  discretion.  Proof  of  such  ser- 
vice must  be  made  by  the  affidavit  of  the  person  who  makes 
the  service,  except  when  such  service  is  made  by  an  officer  of 
the  court  authorized  to  serve  process,  in  which  case  the  certifi- 
cate of  the  oilicer  who  makes  the  service  is  sufficient  proof 
thereof.4  Service  may  be  made  in  any  county  of  this  state 
where  the  defendant  may  be  found.8  If  there  are  minor  chil- 
dren it  must  be  served  on  the  prosecuting  att6rney  of  the 
county  where  the  suit  is  pending. 

§407.     Substituted  Service. 

In  cei-tain  cases  where  it  is  made  to  appear  that  personal 
service  cannot  be  had  within  this  state,  the  statute  and  rules 
of  practice  provide  for  a  substituted  service.  In  such  cases 
an  application  may  be  made  to  the  circuit  judge  or  a  circuit 
court  commissioner  for  an  order  for  the  appearance  of  the 
defendant.  The  application  must  be  made  by  affidavit  of  some 
person  who  has  knowledge  of  the  facts,  and  may  be  made  at 
the  time  of  filing  the  bill  or  at  any  time  thereafter.  The  order, 
if  made,  requires  the  defendant  to  appear  within  three  months 
from  the  date  of  the  order.  Such  order  can  only  be  made 
upon  proof  by  affidavit  of  some  one  of  the  following  facts: 
firxt ;  that  the  defendant  resides  out  of  the  state:  second;  that 
the  defendant  is  a  resident  of  this  state,  and  that  a  summons 
for  his  appearance  has  been  duly  issued  and  that  the  same 
could  not  be  served  by  reason  of  the  absence  of  the  defendant 
from  the  state,  or  his  concealment  therein,  or  by  reason  of  his 
continued  absence  from  his  place  of  residence:  or.  third;  that 
it  cannot  be  ascertained  in  what  state  or  country  the  defend- 
ant resides.6  Within  twenty  days  after  the  order  is  made 
it  must  be  published  in  some  newspaper  printed  in  the  county 
where  the  suit  is  pending,  or  in  such  other  paper  as  the  court 
may  direct,  and  such  publication  continued  once  in  each  week 
for  six  successive  weeks:  but  such  publication  will  not  be 
necessary  in  any  case  in  which  a  copy  of  such  order  shall  have 
been  served  personally  on  such  absent,  concealed  or  non-resi- 

3.  C.  C.  Rules  No.   19,  Sec.  2;  5.     C.    L.    1915,    (12425);    Cum- 
Cummins  &  Beecher's  Mich  Rule  mins   &   Beecher's   Mich.   Judica- 
Book,  page  584.  ture  Act.  §548. 

4.  C.   L.    1915,    (12405);    Cum-  6.     C.   L.    1915,    (12449);    Cum- 
mins  &   Beecher's   Mich.    Judica-  mins   &   Beecher's   Mich.    Judica- 
ture  Act.    §528.  ture  Act,   §572. 

295 


§408  BRINGING    DEPENDANT    INTO     COURT 

dent  defendant  at  least  twenty  days  before  the  expiration  of 
the  time  prescribed  for  the  appearance  of  the  defendant.  Proof 
of  such  publication  or  service  must  be  made.7  The  court, 
when  necessary,  upon  motion  or  petition  of  the  plaintiff,  may 
by  further  order  extend  the  time  for  appearance  of  the  de- 
fendant, and  in  such  a  case  will  direct  the  publication  of 
such  further  order  "for  such  time  as  it  may  think  proper.8 

In  all  cases  where  such  order  for  the  appearance  of  the 
defendant  is  made,  a  certified  copy  of  the  same  must  also  be 
mailed  to  the  defendant  at  his  last  known  post  office  address, 
by  registered  mail,  and  a  return  receipt  demanded,  and  proof 
by  affidavit  of  such  mailing  must  be  filed,  showing  whether  a 
return  receipt  has  been  received,  and-  if  one  was  received  it 
must  be  attached  to  the  affidavit.9 

§408.    Affidavit  for  Order  of  Publication. 

If  -the  defendant  is  a  resident  of  another  state,  the  affidavit 
must  show  not  only  the  fact  of  non-residence,  but  it  must  show 
the  place  of  residence  of  the  defendant,  if  known.  If  the  state, 
or  the  particular  place  in  the  state  where  the  defendant  re- 
sides is  not  known,  the  affidavit  should  show  what  efforts  have 
been  made  to  ascertain  his  place  of  residence,  and  that  such 
place  cannot  be  ascertained. 

If  the  defendant  is  a  resident  of  this  state,  a  summons  must 
be  issued  and  returned  not  served,  and  the  reasons  for  not 
•  serving  it  nlust  be  shown  by  the  return,  and  such  reasons  must 
be  such  as  the  law  recognizes  as  sufficient  to  authorize  the 
court  to  make  the  order  of  publication.  The  statute  authoriz- 
ing substituted  service  must  be  strictly  construed  and  fully 
complied  with.  The  rule  is  \yell  established  that  all  excep- 
tional methods  of  service  and 'of  obtaining  jurisdiction  over 

7.,    C.    L.    1915,    (12450);    Cum-  515,  60  N.  W.   R.   52;    Schoenfeld 

mins    &   Beecher's    Mich.    Judica-  v.  Bourne,   159  Mich.  139,  123  N. 

ture    Act,    573.     All    exceptional  W.    R.   537.    As   to   sufficiency    of 

methods  of  obtaining  jurisdiction  the    affidavit    for    the    order    see 

over  persons  not  found  within  the  Platt    v.    Stewart,    10  i  Mich.    260; 

state,    must    be    confined    to    the  Torrans  v.    Hicks,   32   Mich.   307. 

cases,  and  exercised  precisely  in  8.     C.   L.    1915,    (12451) ;    Cum- 

the  way  provided  for  by  the  stat-  mins    &   Beecher's    Mich.    Judica- 

ute;     Thompson    v.    Thomas,    li  ture  Act,   $574. 

Mich.  274;   Steere  v.  Vanderberg,  9.     C.    L.   1915,    (1124661 ;    Cum- 

67   Mich.    530,   35   N.   W.   R.   110;  mins    &    Beecher's    Mich.    Judica- 

Montgomery  v.   Merrill,   36  Mich.  ture  Act,  §587. 
97;  Jaffray  v.  Jennings,  101  Mich. 

296 


roi:\i   <>r  AI  Kii'.YViT  ;  !<>!» 


I 

persons  nnt>t  lie  confined  to  the  cases  prescribed  by  the  stat- 
ute, and  must  be  exercised  hi  tin1  precise  manner  which  the 
statute  points  out.10  The  statute  clearly  and  distinctly  re- 
i|itires  that  the  cause  for  issuing  the  order  must  he  made  out 
by  proof,  and  such  proof  must  be  made  by  some  one  who  testi- 
fies on  his  own  responsibility,  and  the  process  must  he  issued 
and  diligent  efforts  made  to  serve  it  during  Ihe  entire  time 
qjllowed  for  service.11 

' 
§409.     Form  of  Affidavit. 

The  affidavit  must  be  entitled*  with  the  names  of  both  plain 
tiff  and  defendant.12  It  may  be  made  as  soon  as  the  bill  is 
tiled,  but  not  before.13  It»must  state  facts  of  inquiry  and  in- 
formation upon  which  is  based  the  conclusion  therein  express- 
ed. that  the  defendant  is  absent  from,  or  concealed  within  the 
state.14  It  must  be  made  at  or  about  the  time  the  order  is 
granted.  Such  an  affidavit  made  five  days  before  making  an 
order  for  the  appearance  of  an  absent  or  non-resident  defendant 
will  not  authorize  the  making  of  the  order.  The  latter  must 
be  made  upon  facts  existing  at  the  time  it  is  made,  and  it  must 
state  such  facts  as  are  stated  in  the  affidavit  as  will  show  a 
statutory  reason  for  making  it.  When  made,  on  a  proper  af- 
fidavit, the  order-  is  an  adjudication  that  the  statutory  cause 
existed  at  the  time  it  was  made.  Consequently  the  affidavit 
must  make  a  prima  facie  case,  without  which  the  order  will  be 
invalid,  but  the  degree  of  proof  is  not  subject  to  review.1 

i 

10.  Platt  v.   Stewart,  10  Mich.          13.     Gordon  v.   Tyler,   53   Mich. 
260;  King  v.  Harrington,  14  Mich.      70. 

532;    Merrill    v.    Montgomery,    25  631,  19  N.  W.  R.  560,  20  N.  W.  R. 

Mich.    73;    People    v.    Dawell,    25  14.     Thompson     v.     Judge,     54 

Mich.    269;    Hartford    Ins.   Co.    v.  Mich.  236,  19  N.  W.  R.  967. 

Owen,  30  Mich.  441;   Dennison  v.  15.     N.  Y.  Baptist  Union  v.  At- 

Smith.  33  Mich.  155;  Hebel  v.  Am-  well,   95   Mich.   239,  54   N.   W.   R. 

azon  Ins.  Co.,  33  Mich.  400;  Mont-  460;   Adams  v.   Circuit  Judge,  98 

gomery  v.  Merrill,   36  Mich.   101;  Mich.   53,   56   N.  W.   R.   105;    The 

Dewey.    v.    Central    Car    Co.,    42  affidavit  may  be  made  upon  infor- 

Mich.  403,  4  N.  W.  R.  179;  Colton  mation  and  belief,  but   it  should 

v.  Rupert,  60  Mich.  318,  27  N.  W.  give  the  name  of  the  informant, 

R.  520;   Morrison   v.  Morrison,  64  or  the  source  from  which  the  in- 

Mich.  53,  30  N.  W.  R.  903;  Adams  formation   is  derived;    yet   if  the 

,  v.  Judge,  98  Mich.  52,  56  N.  W.  R.  affidavit    contains    some   evidence 

1051;  of  the  fact  necessary  to  be  estab- 

11.  Sowie   v.   Hough,   45   Mich,  'lished  it  will  be  sufficient  to  give 
420,  8  N.  W.  R.  50.  the    Court    jurisdiction    to    make 

12.  Arnold    v.    Nye,    11    Mich  the  order;  Pettiford  v.  Zoellner,  45 
456.  Mich.  358.  8  N^W.  R.  57;  Colton 

29Z 


§410  BRINGING    DEFENDANT     INTO     COURT 

§410.    Appearance  of  the  Defendant. 

If  the  summons  has  been  personally  served,  and  due  proof 
of  such  service  filed,  the  defendant  must  enter  his.  appearance 
in  the  suit,  either  in  person  or  by  attorney,  within  fifteen  days 
from  the  date  of  such  service.  Such  appearance  is  entered  by 
filing  a  notice  thereof  in  the  office  of  the  clerk  of  the  court,  and 
serving  a  copy  of  the  same  on  the  attorney  for  the  plaintiff.  In 
cases  where  it  becomes  necessary  to  bring  the  defendant  into 
court  by  publication  or  service  of  an  order  for  his  appearance, 
notice  of  such  appearance  must  be  filed  and  a  copy  thereof 
served  on  the  attorney  for  the  plaintiff  within  the  time  desig- 
nated in  the  order.16 

v.  Rupert,  60  Mich.  318,  27  N.  W.  Book,  p.  606.  Sec.  2;  After  gen- 
ii. 520;  Morrison  v.  Morrison,  64  eral  appearance  the  defendant  is 
Mich.  53,  30  N.  W.  R.  903;  Powell  entitled  to  notice  of  all  future  pro- 
v.  Pierce,  168  Mich.  427,  134  N.  ceedings;  Connor  v.  Jochen,  171 
W.  R.  447.  Mich.  69,  137  N.  W.  R.  69;  C.  L. 
'  16.  C.  C.  Rules,  1916,  No.  31;  1915,  (12457);  Cummins  &  Beech- 
Cummins  &  Beecher's  Mich.  Rule  er's'Mich.  Judicature  Act,  §580. 


298 


CHAPTER  XXXV. 
PROCEEDINGS  AFTKK  APPEARANCE  OF  DEFENDANT. 

§411.  Copy  of  Bill  to  be  Served. 

§412.  Demurrers  and  Pleas  Abolished. 

§413.  Motion  to  Dismiss. 

§414.  Default  for  not  Appearing. 

§415.  Default  for  Want  of  Answer. 

§416.  Setting  aside  Default. 

§417.  Amending  Pleadings. 

§418.<  Answer: — Form  of. 

§419.  Sworn  Answer: — Effect  of. 

§420.  Cross-Bills. 

§421.  Chancery  Pleadings:  How  Verified. 

§422.  Before  Whom  Pleadings  may  be  Sworn  to. 

§423.  Supplemental  Pleadings. 

§424.  Supplemental  Bills: — Nature  of;  When  Proper. 

§425.  Who  to  be  Made  Parties  to  a  Supplemental  Bill. 

§426.  Form  of  Supplemental  Bill. 

§427.  Leave  to  File: — How  Obtained;  Process. 

§428.  Defenses  to  Supplemental  Bill. 

§429.  Answers  to  Supplemental  Bills. 

§430.  Evidence  to  Support  Supplemental  Bill. 

§411.     Copy  of  Bill  to  be  Served. 

Upon  receiving  notice  of  the  appearance  of  the  defendant, 
the  plaintiff  must  cause  a  copy  of  the  bill  of  complaint  to  be 
served  upon  him  or  his  attorney  within  fifteen  days  after  re- 
ceipt of  the  notice  of  appearance,  unless  a  copy  of  the  bill  has 
been  served  with  the  summons.17 

§412.    Demurrers  and  Pleas  Abolished. 

Under  the  former  practice  the  defendant  was  required  to 
h'le  and  serve  his  demurrer,  plea  or  answer  to  the  bill  within 
fifteen  days  after  service  of  a  copy  of  the  bill  of  complaint.  The 
Judicature  Act  of  1915,  however,  abolishes  demurrers  and 
l>lc;is.  ;iml  provides  that  all  questions  heretofore  required  to  be 
raised  by  plea  or  demurrer  must  now  be  raised  by  motion  to 

17.     C.   C.  Rules,   1916,  No.   31,       Mich.  Rule  Book,  p.  607. 
Sec.     2;     Cummins    &    Beecher's 

299 


§413  PROCEEDINGS  AFTER  APPEARANCE 

dismiss,  or  in  the  answer.18  If  the  objection  to  the  bill  raises 
a  question  of  fact,  it  should  be  presented  by  the  answer;  if  a 
question  of  law,  by  motion  to  dismiss. 

§413.     Motion  to  Dismiss. 

If  objections  to  the  bill  are  raised  by  motion  to  dismiss,  the 
motion  should  be  filed  and  a  copy  served  within  fifteen  days 
after  service  of  a  copy  of  the  bill.  If  a  copy  of  the  bill  was 
served  with  the  summons,  such  motion  must  be  filed  within 
fifteen  days  after  such  service.  If  the  objection  to  the  bill  is 
raised  by  the  answer,  the  same  should  be  brought  on  for  hear- 
ing and  determination  by  the  court  in  advance  of  the  hearing 
on  the  merits,  upon  four  days  notice  by  either  party.  The 
plaintiff,  at  any  time  either  before  or  after  the  hearing  of  the 
objections,  may  amend  the  bill  so  as  to  meet  the  objections 
raised  thereto,  upon  such  terms  as  the  court  may  deem  prop- 
er.19 

On  the  hearing  of  all  motions  involving  questions  of  fact, 
the  court,  in  its  discretion,  may  require  the  production  of  all 
of  the  witnesses  for  examination  in  open  court.20 

Irregularities  as  to  service  of  process  are  waived  where  the 
defendant  voluntarily  enters  a  general ,  appearance  and  an- 
swers the  bill.21 

But  where  there  is  a  special  appearance  such  irregularities 

18.  C.  L.  1915,  (12456)  ;  Cum-  City,  119  Mich.  395,  78  N.  W.  R. 
Tnins  &  Beecher's  Mich.  Judica-  328;  Arndt  v.  Bourke,  120  Mich, 
ture  Act,  §579;  C.  C.  Rules,  1916,  263,  79  N.  W.  R.  190;  Smith  v. 
No.  31,  Sec.  6;  Cummins  &  Beech-  Cowles,  123  Mich.  4,  81  N.  W.  R. 
er's  Mich.  Rule  Book,  p.  608;  any  916;  McDonald  v.  Smith,  139 
defect  which  would  have  been  Mich.  211,  102  N.  W.  R.  668; 
waived  by  failing  to  make  an  ob-  Kern  v.  Verein,  139  Mich.  233, 
jection  to  a  pleading  by  demurrer  102  N.  W.  R.  746;  Sauer  v.  Mc- 
or  plea  under  the  former  practice  Clintic,  179  Mich.  618;  Clark  v. 
will  be  waived  under  the  new  O'Rourke,  111  Mich.  108,  69  N.  W. 
practice  if  not  timely  raised  by  a  R.  147;  Johnson  v.  Burke,  167 
motion  to  dismiss.  Therefore  the  Mich.  349,  132  N.  W.  R.  1017. 
decisions  involving  the  question  of  19.  C.  L.  1915,  (12456);  Gum- 
waiver  by  failure  to  demur  or  mins  &  Beecher's  Mich.  Judica- 
plead  are  applicable  to  the  new  ture  Act,  §579. 
practice;  Jennison  v.  Haire,  29  20.  C.  L.  1915,  (12580);  Gum- 
Mich.  209,  Barton  v.  Gray,  48  mins  &  Beecher's  Mich.  Judica- 
Mich.  164,  12  N.  W.  R.  30;  Weaver  ture  Act,  §703. 
v.  Van  Akin,  77  Mich.  588,  43  N.  21.  Greacen  v.  Buckley  &  Doug- 
W.  R.  1081;  Fuller  v.  Jackson,  82  las  Lumber  Co.,  167  Mich.  569,  133 
Mich.  480,  56  N.  W.  R.  721;  Baent  N.  W.  R.  538;  Thompson  v.  Bene- 
v.  Kennicutt,  57  Mich.  268;  23  N.  fit  Association,  52  Mich.  522,  18 
W.  R.  808;  Williams  v.  West  Bay  N.  W.  R.  247. 

300 


DEFAULT    KUU    WANT    OF    ANSWKU  §415 

« 

' 

are  not  waived.22  After  a  general  appearance  by  the  defend- 
ant, he  is  entitled  to  notice  of  all  subsequent  proceedings.-3 
If  the  bill  is  taken  as  confessed  by  the  defendant  for  want 
<»f  answer,  after  he  has  entered  a  general  appearance,  notice  of 
the  order  pro  confesso  must  be  served  on  his  attorney,  and  al- 
so of  all  other  proceedings  subsequent  to  his  appearance.24 

§414.     Default  for  not  Appearing. 

If  the  defendant  does  not  appear  within  fifteen  days  after 
service  of  the  summons,  upon  due  proof  of  the  service  and  non- 
appearance  the  plaintiff  may  enter  an  order  taking  the  bill 
as  confessed  by  the  defendant.  Proof  of  service  of  the  sum- 
mons must  be  made  by  the  certificate  of  the  sheriff  or  other  of- 
ficer who  made  the  service,  or,  if  the  service  was  made  by  some 
person  not  an  officer,  the  proof  of  service  may  be  made  by  such 
person.  The  affidavit  should  state  the  time,  place,  and  man- 
ner of  service,  and  the  age  and  place  of  residence  of  the  affiant. 

If  a  substituted  service  has  been  had,  the  publication  of  the 
order  for  the  appearance  of  the  defendant,  for  the  period  of 
time  prescribed  in  the  order,  must  be  shown  by  the  affidavit  of 
the  publisher  or  printer  of  the  paper  in  which  the  order  was 
published.2"'  In  such  case  the  fact  of  non-appearance  may  be 
shown  by  the  affidavit  of  the  plaintiff's  attorney,  showing  that 
he  has  received  no  notice  of  appearance  from  the  defendant,  or 
by  the  certificate  of  the  clerk  of. the  court  showing  that  no  ap- 
pearance has  been  filed  or  entered  by  the  defendant. 

§415,    Default  for  Want  of  Answer. 

If  the  defendant«does  not  cause  his  answer  or  motion  to  dis- 
miss to  be  filed  within  fifteen  days  after  service  of  a  copy  of 
the  bill,  the  plaintiff,  upon  due  proof  that  a  copy  of  the  bill  has 
been  served  and  that  more  than  fifteen  days  have  elapsed  since 
such  service,  may  file  and  enter  an  order  taking  the  bill  as  con- 
fessed by  the  defendant.26 

The  court,  on  good  cause  shown,  may  extend  the  time  for  ap- 

22.  Woodruff     v.1     Young,      43  25.     C.  L.  1915,    (12450)  ;    Cum- 
Mich.  548,  6  N.  W.  R.  85;  Whipple  mins    &    Beecher's    Mich.    Judica- 
v.  Stewart,  Walk.  Ch.  357.  ture  Act,   §573  ;C.   C.  Rules  1916, 

23.  Jenney  v.  O'Flynn,  5  Mich.  No.    32;     Cummins    &    Beecher's 
215;  Kellogg  v.  Putnam,  11  Mich.  Mich.  Rule  Book,  p.  609. 

344.  26.     C.    C.   Rules,   1916.  No.   32. 

24.  Martin    v.    McReynolds,    6      Sec.     3;     Cummins    &    Beecher's 
Mich.    70;    Watson    v.    Hinchman       Mich.  Rule  Book,  p.  609. 

41  Mich.  716,  3  N.  W.  R.  202. 

301 


§410  *  PROCEEDINGS  AFTER  APPEARANCE 

pearing  or  for  filing  any  pleading.  The  application  for  such 
extension  of  time  may  be  made  by  special  motion  or  petition, 
and  the  reasons  for  such  extension  may  be  shown  by  the  affi- 
davit of  any  person  having  personal  knowledge  of  the  facts  up- 
on which  the  application  is  based. 

§416.     Setting  aside  Default. 

The  order  pro  confesso  may  be  set  aside  on  special  motion 
for  cause  shown,  in  the  discretion  of  the  court,  on  such  terms 
as  it  may  deem  just  and  proper.  To  entitle  a  defendant  to  an 
order  setting  aside  his  default,  for  want  of  appearance  or  an- 
swer, he  must  proffer  a  sworn  answer,  showing  a  defense  on 
the  merits  as  to  the  whole  or  a  part  of  the  plaintiff's  case. 

In  all  cases  where  personal  service  shall  have  been  had  on 
the  defendant,  and  proceedings  taken  on  the  default  on  the 
strength  thereof,  the  default  will  not  be  set  aside  unless  the 
application  is  made  within  six  months  after  such  default  was 
regularly  filed. 

Subject  to  statutory  provisions,  in  any  case  where  personal 
service  shall  have  been  made  upon  the  defendant,  an  order  set- 
ting aside  the  default  will  be  upon  the  condition  that  he  pay 
the  taxable  costs  incurred  in  reliance  on  the  default,  and  the 
court  may  impose  such  other  conditions  as  may  be  deemed 
proper.27 

§417.    Amending  Pleadings. 

The  plaintiff  may  amend  the  bill  at  any  time  before  the  an- 
swer is  put  in,  or  within  ten  days  thereafter  without  leave  of 
the  court  and  without  costs. 

The  defendant  may  amend  his  answer  at  any  time  writhin  ten 
days  after  it  is. put  in,  without  leave  of  the  court  and  without 
costs. 

In  such  cases  no  rule  or  order  to  amend  is  required,  but  a 
copy  of  the  amended  pleading,  entitled  "Amended  Bill  of  Com- 
plaint" or  "Amended  Answer,"  as  the  case  may  be,  .must  be 
filed  and  served,  with  a  notice  that  it  is  a  copy  of  the  pleading 
as  amended. 

An  answer  on  file  will  stand  as  an  answer  to  an  amended 
bill  of  complaint,  unless  an  amendment  to  such  answer  is 

27.     C.   C.  Rules,   1916,  No.   32,       145*  Mich.  247,  108  N.  W.  R.  694; 
Sec.     4;     Cummins    &    Beecher's       Emery  v.  Airth,  180  Mich.  433. 
Rule  Book,  p.  609.    Hews  v.  Hews, 

302 


FOK.U    OF    ANSWKK 


made  within  ten  days  after  service  of  a  copy  of  the  amended 
bill  of  complaint.28 

After  the  time  for  amending  any  pleading  without  costs  or 
order  of  the  court  has  expired,  the  court  in  which  the  action 
is  pending  has  authority  to  amend  any  process,  pleading  or 
proceeding,  either  in  form  or  substance,  for  the  furtherance 
of  justice,  on  such  terms  as  shall  be  just,  at  any  time  before 
the  decree  in  the  cause  is  rendered;  and  any  defect  or  error 
which  does  not  affect  the  substantial  rights  of  the  parties  may 
be  disregarded  by  the  court.29 

§418.    Form  of  Answer. 

The  answer  should  be  as  brief  as  the  nature  of  the  case  will 
permit,  and  mifst  not  state  facts  of  which  the  conri  t;ikes  judi- 
cial notice,  nor  matters  of  evidence. 

Statements  not  required  to  be  proved  should  be  avoided  in 
any  pleading.30  The  answer  should  contain  a  plain  and  con 
cise  statement,  without  repetition,  of  the  facts  relied  on  as 
constituting  a  defense,  and  no  others.  It  must  be  divided  in- 
to paragraphs,  numbered  consecutively,  each  containing  as 
near  as  may  be  a  single  allegation.  Dates,  sums  and  numbers 
may  be  expressed  either  in  figures  or  words.31 

The  answer  must  contain  an  explicit  denial  or  admission  of 
each  allegation  in  the  bill  of  complaint,  as  to  which  the  defend- 
ant has  knowledge  or  belief.  As  to  matters  charged  in  the  bill 
regarding  which  the  defendant  avers  he  has  no  knowledge  or 
information  sullicient  to  form  a  belief,  he  is  not  required  to  ad- 
mit or  deny  the  same,  but  the  want  of  such  knowledge  must 
be  stated.  Kvery  material  allegation  in  the  bill  as  to  which 
no  answer  is  made  will  be  treated  as  admitted  by  the  defend- 
ant.32 


28.  C.   C.   Rules,   1916,   No.   28, 
Sec.    1-3;    Cummins    &    Beecher'a 
Mich.    Rule   Book,   p.    604. 

29.  C.  L.   1915,    (12478);    Cunv 
mins  &  Beecher's  Mich.  Judicature 
Act,  §601. 

30.  C.    C.    Rules,   1916s   No.   21. 
Sec.     3;     Cummins    &    Beecher's 
Rule  Book,  p.   588. 

31.  C.   C.   Rules,    1916.   No.    21. 
Sec.     2;     Cummins    &     Beecher's 
Rule  Book,  p.  588. 

32.  C.   C.    Rules,    1916,  No.    25, 
Sec.     2;     Cummins     &     Beecher's 


Mich.  Rule  Book,  p.  599.  Ad- 
missions  and  denials;  Explicit 
denial  of  every  allegation  in  the 
bill  must  be  made,  where  the 
defendant  has  any  knowledge 
or  belief;  and  where  he  has 
no  such  knowledge  or  informa- 
tion, sufficient  to  form  a  belief  he 
should  so  state;  Greilick  v.  Rog- 
ers, 144  Mich.  313,  107  N.  W.  R. 
885;  Hoock  v.  Sloman,  145  Mich. 
19,  108  N.  W.  R.  447;  Carpenter 
v.  Hood,  172  Mich.  533,  138  N.  W. 
R.  241. 


303 


§419  PROCEEDINGS  AFTER  APPEARANCE 

§419.     Sworn  Answer: — Effect  of. 

Whenever  in  a  chancery  suit  a  sworn  bill  of  complaint  is 
filed  and  a  sworn  answer  demanded,  the  defendant  is  required 
to  file  such  sworn  answer ;  but  neither  a  sworn  bill  nor  a  sworn 
answer  has  any  force  as  evidence,  except  as  to  admissions,  and 
on  the  hearing  of  motions  and  petitions.33 

§420.     Cross-Bills. 

If  the  defendant  in  a  divorce  suit  denies  the  plaintiff's  right 
to  the  relief  prayed,  and  conceives  himself  entitled  to  a  di- 
vorce or  other  affimative  relief  against  the  plaintiff,  within  the 
jurisdiction  of  the  court  in  which  the  action  is  pending,  he 
may  file  a  cross-bill  for  such  relief.  When  a  crossf-bill  is  to 
be  filed,  no  separate  answer  should  be  filed,  but  the  defendant, 
in  the  first  division  of  his  cross-bill,  must  answer  the  allega- 
tions of  the  bill  in  accordance  with  the  general  rules  of  prac- 
tice as  to  answers,  before  setting  forth  the  affirmative  matters 
of  the  cross-bill.  The  part  of  the  cross-bill  setting  forth  the 
affirmative  matter 'upon  which  affirmative  relief  is  asked,  the 
prayer  for  relief  and  the  prayer  for  process,  when  required, 
must  comply  with  the  general  rules  of  practice  as  to  original 
bills  of  complaint ;  but  no  allegation  properly  made  in  the  an- 
swer division  of  the  cross-bill  need  be  repeated  in  the  affirm- 
ative division  of  the  cross-bill.34 

§42 1 .     Chancery  Pleadings : — How  Verified. 

All  chancery  pleadings  which  are  required  to  be  sworn  to 
may  be  verified  by' the  oath  of  the  moving  party  therein,  or, 
in  case  of  his  absence  from  the  state,  or  for  other  sufficient 
cause  shown,  by  the  oath  of  his  agent  or  attorney.35 

In  pleadings  which  are  to  be  verified  by  the  oath  of  the 
party,  the  several  matters  stated  must  be  stated  positively,  or 
upon  information  and  belief  only,  according  to  the  fact.  The 
oath  administered  to  the  party  must  be,  substantially,  that  he 

33.  C.   C.  Rules,   1916,  No.   21,  the   jurat   should    state   that    the 
Sec.     2;     Cummins    &    Beecher's  person  verifying   the  pleading   is 
Mich.  Rule  Book,  p.  588.  the     agent;     but    it    seems    that 

34.  C.  C.   Rules,  1916,  No.   26,  where   a   pleading   is    verified   by 
Sec.    1-2;    Cummins    &    Beecher's  the  oath  of  the  Attorney  of  the 
Mich  Rule  Book,  p.  604.  party  filing  it  the  Court  will  take 

35.  C.   C.  Rules,   1916,  No.   27,  judicial  notice  of  that  fact  from 
Sec.     1;     Cummins    &    Beecher's  the    record;    Burgh    v.    Poupard. 
Mich.  Rule  Book,  p.    602.     When  Walk.  Ch.  5. 

fhe   verification    is   by   an   agent, 

304 


r.KFom-:  WHOM   I-LKADINOS  MAY  r.i:  swoux  TO  §422 

has  read,  or  heard  read,  the  bill,  cross  hill,  or  answer,  as  the 
case  may  be,  and  knows  the  contents  thereof;  and  that  the 
same  is  true  of  his  own  knowledge,  except  as  to  tin-  mutters 
which  are  therein  stated  to  be  upon  his  information  and  be- 
lief, and  as  to  those  matters  he  believes  it  to  be  true;  and  the 
substance  of  the  oa'th  must  be  stated  in  the  jurat.  If  the 
pleading  to  be  verified  is  a  bill  or  cross-bill  praying  for  di- 
vorce, there  must  be  added  to  the  oath  administered  to  the 
party  the  statement  that  there  is  no  collusion,  understanding 
or  agreement  whatever  between  the  parties  as  to  the  applica- 
tion for  a  divorce. 

§422.     Before  Whom  Pleadings  may  be  Sworn  to. 

Any  pleading  required  to  be  verified  may  be  sworn  to  before 
any  officer  authorized  by  the  la.ws  of  this  state  to  administer 
oaths  or  take  depositions.  They  may  also  be  sworn  to  before 
any  notary  public  or  other  person  authorized  by  the  laws  of 
any  other  state  or  territory  to  administer  oaths;  but  if  sworn 
to  in  another  state  or  territory  there  must  be  added  the  certi- 
ficate of  the  clerk  of  some  court  of  record  of  the  county,  un- 
der the  seal  of  the  court,  showing  the  official  character  of  the 
person  administering  the  oath  and  the  genuineness  of  his  si^ 
nature.  Such  pleading  may  be  sworn  to  in  any  foreign  coun- 
try, before  any  minister  or  other  diplomatic  agent  or  consul 
of  the  United  States,  or  any  notary  public ;  but  the  signature 
of  such  notary  public  Of  a  foreign  country  must  be  under  his 
notarial  seal.87 

36.  C.  C.  Rules,  1916,  No.  27,  verified,  such  verification  is  not 
Sec.  2;  Cummins  &  Beecher's  necessary  as  a  general  rule,  ex- 
Mich.  Rule  Book,  p.  602.  A  plead-  cept  in  cases  where  it  is  desired 
ing  which  is  required  to  be  veri-  to  use  such  pleading  as  an  appli- 
fied  may  he  sworn  to  by  the  plain-  cation  for  preliminary  relief  for 
tiff  if  he  has  knowledge  as  to  process  which  must  be  based  on 
part  of  the  facts  and  states  the.  an  order  of  the  Court;  Atwater  v. 
remainder  on  information  and  Kinman,  Har.  Ch.  243;  But  Bills 
belief;  and  it  is  proper  to  state  for  divorce  .and  cross-bills  pray- 
those  facts  which  are  alleged  ing  for  divorce  on  the  application 
on  information  and  belief,  by  of  the  defendant,  must  be  veri- 
the  affidavit  of  such  persons  fled;  C.  C.  Rules,  1916,  No.  59; 
who  have  personal  knowledge  Cummins  &  Beecher's  Mich.  Rule 
of  such  facts;  Hartingh  v.  Cir-  Book,  p.  645. 

cuit    Judge,     176    Mich.    289,    142          37.     C.   C.  Rules,   1916,  No.    27, 

N.  W.  R.  585.     Unless  a  chancery  Sec.     3;     Cummins    &    Beecher's 

pleading    is    required    by    statute  Mich.   Rule  Book,   p.   603. 
or  the  rules   of   the   Court  to  be 

305 


§423  PROCEEDINGS  AFTER  APPEARANCE 

§423.     Supplemental  Pleadings. 

If,  on  the  trial  of  the  cause,  the  plaintiff  desires  to  avail 
himself  of  matters  occurring  since  the  bill  of  complaint  was 
filed,  he  must  bring  such  matters  to  the  attention  of  the  court 
by  supplemental  bill.  If  the  defendant  desires  to  do  so  he  must 
file  a  supplemental  answer,  or  a  supplemental  cross-bill. 

Upon  the  application  of  either  party,  the  judge  of  the  court 
in  which  the  action  is  pending,  upon  reasonable  notice  and 
such  terms  as  are  just,  may  permit  a  supplemental  pleading 
to  be  filed  and  served,  avering  material  facts  occurring  after 
his  former  pleading  was  filed,  or  of  which  he  was  then  ignor- 
ant, including  a  judgment  or  decree  of  a  competent  court,  ren- 
dered after  the  commencement  of  the  suit,  determining  the 
matter  in  controversy  or  a  part  thereof.  But  a  supplemental 
pleading  will  not  be  considered  a  waiver  of  any  former  plead- 
ing. If  the  filing  of  such  supplemental  pleading  is  during  a 
term  of  court  when  the  cause  is  on  the  docket  for"  trial,  the 
court  in  its  discretion,  may  grant  a  continuance,  and  the  costs 
of  the  continuance  are  discretionary  with  the  court.38 

§424.     Supplemental  Bills : — Nature  of ;  When  Proper. 

A  supplemental  bill  is  used  for  the  purpose  of  bringing  be- 
fore the  court  matters  relating  to  the  controversy  which  have 
arisen  after  the  suit  was  commenced,  or  where  a  new  interest 
in  -the  matter  in  litigation  is  claimed  by  an  existing  party  .to 
the  suit,  or  a  new  party  claims,  not  by  mere  operation  of  law. 
the  interest  which  was  claimed  by  an  existing  party.30  Occa- 
sion to  use  a  supplemental  bill  in  a  divorce  case  does  not  of- 
ten arise.  The  most  frequent  occasion  to  do  so  is  where,  after 
the  suit  is  commenced,  another  or  different  cause  for  divorce 
has  occurred. 

§425.    Who  to  be  Made  Parties  to  a  Supplemental  Bill. 

As  a  general  rule,  where  a  supplemental  bill  is  filed  on  ac- 
count of  new  matters  which  have  arisen  since  the  filing  of  the 
original  bill,  all  defendants  in  the  original  bill  should  be 

38.  C.  C.  Rules,  1916,  No.    29;  317;     1    Hoff.    Ch.    Prac.    393;     2 
Cummins  &  Beecher's  Mich.  Rule  Danl.  Ch.  Prac.  1673;   Story's  Eq. 
Book,  p.  606.     J.  A.  1915,  Ch.  14,  PI.   Sec.  332-3-4;   Barton's  Suit  In 
Sec.  15,  Page  89.  Equity,    128;    Jones    v.    Jones,    3 

39.  Graves   v.   Niles,   Har.   Ch.  Atk.   110;    Stafford  v.   Hewlett,   1 
332;   Barnett  v.  Powers,  40  Mich.  Paige,  201. 

306 


m-:n-;\si-:s.  TO  srrn.KM  I:\TAI.  r.n.r.  £428 


made  defendants  in  the  supplemental  hill/  I'.ui  in  divorce 
cases  (lie  only  parties  ale  (lie  plaintiff  and  the  del'endant.  and 
they  only  can  he  made  parties  to  a  supplemental  hill. 

§426.    Form  of  Supplemental  Bill. 

The  supplemental  bill  should  state  the  filing  of  the  original 
bill  and  the  snhstance  of  it,  the  purpose  for  which  it  was  tiled, 
and  the  proceedings  which  have  been  had  thereon.11  If  it  is 
tiled  to  u-et  the  benefit  of  matters  pertaining  to  the  litigation 
which  have  arisen  since  the  filing  of  the  original  bill,  it  must 
state  such  matters,  and  pray  that  the  defendant  be  required  to 
answer  the  matters  therein  alleged.42 

§427.    Leave  to  File  —  How  Obtained  ;  Process. 

Leave  to  file  a  supplemental  bill  must  be  obtained  by  appli- 
cation  to  the  court  in  which  the  original  bill  is  pending.  It 
has  been  held  that  leave  to  file  a  supplemental  bill  will  be 
granted  upon  an  ex  parte  hearing,  if  there  is  probable  cause 
for  filing  it;  that  the  court  examines  the  question  only  so 
far  as  to  determine  that  the  privilege  is  not  being  abused  for 
the  purpose  of  delay  or  vexation  of  the  defendant,  and  that 
only  in  a  case  of  doubt  will  the  court  direct  notice  of  the  ap- 
plication to  be  given  to  the  defendant.43  But  under  the  Michi- 
gan rules  of  practice  (C.  C.  Rules,  1916,  No.  29)  it  is  necessary 
to  give  reasonable  notice  of  the  application. 

The  summons  to  appear  and  answer  the  supplemental  bill 
should  be  signed,  sealed  and  tested,  and  be  in  practically  tin- 
same  form  as  the  summons  to  appear  and  answer  the  original 
bill.  But  it  is  not  necessary  to  issue  a  summons  against  a  de- 
fendant who  has  appeared  by  attorney  and  answered  the  orig- 
inal bill.  In  such  case  service  of  a  copy  of  the  supplemental 
bill  on  the  attorney  for  the  defendant  will  be  sufficient.44 

§428.     Defenses  to  Supplemental  Bill. 

The  defenses  to  supplemental  bills  are  substantially  the  same 
as  in  other  cases.  In  cases  where,  under  the  former  practice, 

40.  Jones  v.  Jones,  3  Atk.  110;  332;  1  Hoff.  Ch.  Prac.  403;  Eager 
2  Danl.  Ch.  Prac.  1533.  v.   Price,  2  Paige,  337;   Lawrence 

41.  Story's  Eq.  PI.   Sec.   343.  v.   Bolton,  3  Paige,  294. 

42.  Story's   Eq.   PI.    343;    Mitf.          44.     1    Hoff.    Ch.    Prac.    404;    2 
Eq.  PI.  76.  Barb.  Ch.  Prac.  76. 

43.  Graves    v.    Nilos.    Har.    Ch. 

307 


§429  PROCEEDINGS  AFTER  APPEARANCE 

a  plea  or  demurrer  to  the  supplemental  bill  might  be  inter- 
posed, all  questions  which  could  be  raised  in  that  way  must 
now  be  raised  by  motion  to  dismiss  the  supplemental  bill. 

Under  the  former  practice,  a  motion  would  not  lie  to  strike 
the  supplemental  bill  from  the  files  on  the  ground  that  it  does 
not  state  supplemental  matter;  the  proper  practice  in  such 
case  being  to  demur.45  But  in  Michigan  the  Judicature  Act 
of  1915  abolishes  pleas  and  demurrers,  and  a  motion  to  dis- 
miss the  supplemental  bill  would  be  proper  in  such  case.46 

§429.    Answers  to  Supplemental  Bills. 

If  a  defendant  in  a  supplemental  bill  does  not  move  to  dis- 
miss, he  must  put  in  his  answer  the  same  as  in  case  of  an  origi- 
nal bill.  If  he  is  called  on  to  answer  the  original  bill  at  the 
same  time  he  answers  the  supplemental  matter,  the  answer  to 
both  should  be  included  in  the  same  pleading,47  although  it 
probably  would  not  be  fatal  to  separate  them.  Under  the 
present  Michigan  practice  no  replication  to  the  answer  to  the 
supplemental  bill  is  required.  The  issue  is  made  complete 
when  the  answer  to  the  bill  is  filed  and  served. 

§430.    Evidence  to  Support  Supplemental  Bill. 

If  the  new  matter  charged  in  the  supplemental  bill  is  not 
admitted  by  the  defendant  in  his  answer,  it  must  be  proved; 
otherwise  the  supplemental  bill  will  be  dismissed  with  costs.48 

A  supplemental  suit  is  merely  a  continuation  of  the  original 
suit,  and  whatever  evidence  was  properly  taken  under  the 
original  bill  may  be  made  use  of  under  the  supplemental  bill. 
And  other  witnesses  may  be  examined  as  to  the  new  matter 
contained  in  the  supplemental  bill.49  And  where  the  supple- 
mental bill  is  filed,  and  issue  joined  or  default  entered  before 
the  hearing  on  the  original  suit,  the  witnesses  in  the  original 
suit  may  be  examined  in  the  supplemental  suit.  In  such  case 
the  matters  contained  in  the  original  bill  and  the  supple- 
mental bill  should  be  heard  as  one  suit.50 

45.  Jennison's    Ch.    Prac.    365;          47.     Jennison's  Ch.  Prac.  366. 
Bowen  v.  Bright,  13  Price,  316.  48.     2  Barb.  Ch.  Prac.  79. 

46.  C.  L.  1915,    (12658);-  Cum-  49.     2  Barb.  Ch.  Prac.  77-78. 
mins  &  Beecher's  Mich.  Judicature          50.     2    Barb.    Ch.    Prac.    78;    3 
Act,  §781.  Danl.  Ch.  Prac.  186. 


308 


CHAPTER  XXXVI. 

PROCEEDINGS  AFTEH    ISSl'E  JOINED   OR  DEFAULT 

ENTERED. 

§431.  Evidence — How  Taken. 

§432.  Reference  to  Take  Testimony — How  Obtained. 

§433.  Testimony — How  Taken. 

§434.  Testimony   in   Open   Court — Objections   to. 

§435.  Witnesses  in  Divorce  Cases. 

§436.  Alimony  and  Expenses. 

§437.  Temporary  Alimony — How  procured. 

§438.  Order   for   Temporary   Alimony   and    Expenses — Contents   of. 

§439.  Questions  of  Guilt  not  Considered. 

§440.  Amount  of  the  Allowance. 

§431.    Evidence— How  Taken. 

Formerly. .unless  within  ten  days  after  filing  the  replication 
notice  was  given  by  one  of  the  parties  of  an  election  to  have  the 
witnesses  examined  in  open  court,  the  testimony  was  required 
to  be  taken  before  a  circuit  court  commissioner,  and  by  him  re- 
ported to  the  court. 

But  by  the  Michigan  Judicature  Act  of  1915,  the  testimony 
in  all  chancery  cases  is  required  to  be  taken  in  open  court  as 
in  actions  at  law.  unless  the  court  shall  specially  order  a  ref 
erence  to  a  circuit  court  commissioner,  or  some  other  person 
authorized  by  the  laws  of  this  state  ,to  administer  oaths,  to 
take  such  testimony ;  but  this  provision  is  not  'to  be  construed 
as  precluding  taking  depositions  in  chancery  suits  in  any 
cases  provided  for  by  any  law  of  this  state.1 

§432.    Reference  to  Take  Testimony — How  Obtained. 

In  case  either  party  desires  to  have  the  testimony  to  be  used 
in  the  case  taken  before  a  circuit  court  commissioner,  or  other 
person,  an  application  "for  that  purpose  may  be  made  to  the 
court.  Tliis  should  he  by  special  motion  or  petition,  and 
should  he  supported  by  allidavits.  or  a  sworn  petition,  show- 
in-:  the  reasons  therefor,  and  notice  of  such  application  should 

1.     C.    L.   1915,    (12489);    Cum-      ture  Act,   §612. 
mins   &   Beecher's   Mich.   Judica- 

309 


§433  PROCEEDINGS   AFTER   ISSUE   JOINED 

be  given  to  the  attorney  of  the  opposite  party,  or  to  the  party 
himself  if  he  appears  in  person.  A  copy  of  the  application, 
together  with  a  notice  of  the  time  and  place  when  and  where 
it  will  be  heard,  must  be  served  at  least  four  full  days  before 
the  day  of  hearing,  and  the  application  itself  must  be  filed 
with  the  clerk  of  the  court  on  or  before  the  day  of  hearing. 
If  the  court  deems  the  showing  sufficient,  an  order  may  be 
made  referring  the  matter  to  a  circuit  court  commissioner,  or 
some  other  suitable  person  who  is  authorized  by  the  laws  of 
this  state  to  administer  oaths.  The' order  should  be  entitled 
in  the  cause  and  should  state  the  time  within  which  the  testi- 
mony is  to  be  taken. 

The  making  of  the  order  appears  to  be  discretionary  with 
the  court  and  it  would  seem  from  the  language  of  the  statute 
that  the  court,  in  its  discretion,  may  make  the  order  without 
the  application  of  either  party. 

& 

§433.    Testimony— How  Taken. 

The  officer  to  whom  any  such  reference  is  made  is  required 
to  take  such  proofs  as  may  be  offered  by  either  of  the  parties. 
The  bill  will  not  be  considered  evidence  of  any  facts  stated 
therein.  The  officer  to  whom  the  matter  is  referred  should 
procure  the  testimony  to  be  reduced  to  writing  and  signed 
by  the  witnesses.  Each  witness  should  be  sworn  in  the  usual 
manner  before  his  testimony  is  taken,  and  all  objections  to 
any  testimony  offered  should  be  noted. 

After  the  testimony  is  taken,  reduced  to  writing  and  signed 
by  the  witnesses,  the  officer  is  required  to  report  the  same  to 
the  court  in  which  the  suit  is  pending.2 

The  report  of  the  officer  should  be  attached  to  the  testimony 
taken,  and  should  show  the  date  that  it  was  taken,  the  names 
of  the  witnesses  and  the  names  of  the  attorneys  who  appeared 
for  the  respective  parties,  and  the  same  should  be  filed  with 
the  clerk  of  the  court  as  soon  as  convenient  after  the  taking 
of  the  testimony  is  completed. 

« 
§434.    Testimony  in  Open  Court — Objections  to. 

The  Judicature  Act  of  1915  makes  a  radical  change  in  the 
manner  of  taking  the  testimony  of  witnesses  in  chancery 
cases.  The  statute  now  requires  "that' in  all  chancery  cases 

2.     C.  L.  1915,   (12792-4);   Cum-       Act,   §915-7. 
mins  &  Beecher's  Mich.  Judicature 

310 


AM  .\to\y     AMI    KXI'KXSKS  $  \'M'< 

the  court  shall  rule  upon  nil  objections  to  the  competency,  rel- 
evancy or  111:1  tcriiility  of  testimony  or  evidence  oll'ered.  the 
same  as  in  suits  at  law:  and  in  all  cases  where  the  court  is  of 
the  opinion  that  any  testimony  otl'ered  is  incompetent,  irrele 
vant  or  immaterial  the  same  shall  be  excluded  from  the  rec- 
ord." 

Provision  is  made  however,  "that  if  the  testimony  so  oiler 
c-d  and  excluded  is  brief,  the  court  may  in  its  discretion  permit 
the  same  to  be  taken  down  by  the  stenographer,  separate  and 
apart:  from  the'  testimony  received  in  the  case;  and  in  c-as.-  ••!' 
appeal  such  excluded  testimony  may  be  returned  to  the  appel- 
late court  under  the  certificate  of  the  trial  court.  If  such 
excluded  testimony  is  not  taken  and  returned  to  the  Supreme 
Court,  on  appeal,  and  upon  the  hearing  in  the  Supreme  Court, 
such  court  shall  be  of  the  opinion  that  any  such  excluded 
testimony  is  competent  and  material,  it  may  order  the  same 
to  be  taken  by  deposition,  or  under  a  reference,  and  returned 
to  said  court."  4 

§435.    Witnesses  in  Divorce  Cases. 

In  divorce  cases  either  party  may  be  examined  as  a  witness, 
except  in  those  cases  where  the  proceedings  are  instituted  in 
consequence  of  the  adultery  of  the  husband  or  wife.5 

If  a  child  under  the  age  of  ten  years  is  produced  as  a  wit- 
ness for  either  party,  the  court  is  required  to  examine  such 
child  and  ascertain  to  its  own  satisfaction  whether  such  child 
has  sufficient  intelligence  and  sense  of  obligation  to  tell  the 
truth  to  be  safely  admitted  as  a  witness;  and  in  such  case  the 
child  may  be  admitted  as  a  witness,  and  its  testimony  given 
on  its  promise-  to  tell  the  truth  instead  of  upon  oath  or  af- 
firmation.6 Such  examination  by  the  court  may  be  conduct 
ed  publicly  or  privately  in  the  discretion  of»the  court. 

In  other  respects,  the  general  rules  as  to  the  competency  of 
witnesses  are  applicable  to  divorce  cases  and  to  suits  to 
annul  or  affirm  marriages. 

§436.    Alimony  and  Expenses. 

Alimony,  in  a  general  sense,  means  the  allowance  required  by 

3.  C.   L.   1915,    (12493);    Cum-  6.     C.    L.    1915,    (12555);    Cum- 
mins  &    Beecher's    Mich.    Judica-  mins   &    Beecher's    Mich.    Judica- 
ture Act,  8616.  ture  Act,  |678. 

4.  C.    L.    1915,    (12493);    Cum-  6.     C.    L.    1915,    (12556);    Cum- 
mins  &    Beecher's    Mich.    Judica-  mins    &    Beecher's    Mich.    Judica- 
ture Act,  5616.  ture  Act,  8679. 

311 


§437  PROCEEDINGS  AFTER  ISSUE  JOINED 

law  to  be  made  to  a  wife,  out  of  her  husband's  estate,  for  her 
support,  either  during  a  matrimonial  suit,  or  at  its  termina- 
tion. 

From  this  definition  it  will  be  seen  that  alimony  is  either 
temporary  or  permanent.  Temporary  alimony  is  that  which 
is  required  to  be  paid  during  the  pendency  of  the  suit,  and  is 
technically  called  alimony  pendente  lite.  Permanent  alimony 
is  that  which  is  required  to  be  paid  at  or  after  the  termina- 
tion of  the  suit.  Alimony  pendente  lite  may  properly  be  said 
to  include  suit  money,  or  an  allowance  made  to  the  wife  for 
the  payment  of  counsel  fees  and  expenses  of  the  suit.7 

§437.    Temporary  Alimony — How  Procured. 

Where  the  wife  is  entitled  to  temporary  alimony  in  a  matri- 
monial suit,  application  must  be  made  to  the  court  by  special 
motion  or  petition,  setting  forth  the  reasons  for  the  applica- 
tion. The  petition  or  affidavits  in  support  of  the  motion 
should  be  entitled  in  the  cause,  and  should  state  the  pendency 
of  the  suit;  by  which  of  the  parties  it  was  instituted;  the 
means  which  the  wife  has  for  her  support,  if  any;  the  number 
and  ages  of  the  children  of  the  marriage,  if  any,  who  are  de- 
pendent upon  her  for  their  support;  and  the  financial  ability 
of  the  husband,  or  his  earning  capacity,  as  near  as  can  be  as- 
certained. The  motion  or  petition  for  alimony  should  be  filed 
in  the  office  of  the  clerk  of  the  court  in  which  the  action  is 
pending,  and  a  copy  served  on  the  attorney  for  the  husband, 
or  on  the  husband  himself  if  he  has  not  entered  an  appearance 
by  attorney,  with  a  notice  of  the  time  when  and  the  place 
where  the  motion  will  be  heard.  At  least  four  full  "days  no- 
tice must  be  given  of  the  hearing  of  the  motion.8 

If  the  motion  is  opposed  and  any  questions  of  fact  are  in- 
volved, the  court,  in  its  discretion,  if  it  deems  it  necessary  in 
order  to  reach  a  just  conclusion  as  to  such  facts,  may  require 
the  production'  of  all  or  any  of  the  witnesses  having  knowl- 
edge of  the  matters  of  fact  involved  in  the,  motion  or  petition, 
to  be  examined  in  open  court.9 

§438.     Order  for  Temporary  Alimony  and   Expenses — Contents 
of. 

If  the  showing  made  by  the  wife  is  sufficient  to  authorize  it, 

7.  14   Cyc.,   Page   743;    Waters      Sec.    1-2;    Cummins    &    Beecher's 
v.  Waters,  49  Mo.  385.  Mich  Rule  Book,  p.  577. 

8.  C.    C.    Rules,    1916,    No.    15,  9.     J.  A.  1915,  Sec.  8,  Page  114. 

312 


•  ..I  KSTIONS  ur  (iCILT  NOT  CONSIDERED  ?  1">'.I 

the  court  makes  an  order  requiring  the  amount  determined  to 
be  paid  within  such  time  as  the  court  may  deem  proper. 

The  order  Should  be  entitled  in  the  court  :m<l  cause,  and 
should  state  the  amount  to  he  paid  for  counsel  fees,  the 
amount  for  other  expenses  of  the  suit,  and  the  jamount  to  be 
paid  for  the  support  ol'*the  wife,  and  such  children  of  the  mar- 
riage if  any  as  are  dependent  on  her  for  support,  during  the 
pendency  of  the  suit,  at  such  stated  periods  as  may  be  deter- 
mined by  the  court.1" 

§439.     Questions  of  Guilt  not  Considered. 

The  question  of  the  guilt  or  innocence  of  either  party  will 
not  be  entered  into  in  settling  and  determining  the  amount  of 
alimony  and  expenses  pendent<  lit< .  by  hearing  conflicting  affi- 
davits.11 

The  wife  who  makes  application  for  temporary  alimony  and 
expenses  must,  however,  in  her  application,  deny  the  charges 
made  in  the  bill  or  cross-bill  as  the  case  may  be;  or  show 
some  valid  defense  to  her  husband's  suit,  unless  she  has  denied 
it  on  oath  by  her  answer.12 

It  has  been  held,  however,  that  the  husband  may  show,  on 
the  hearing  of  the  wife's  application  for  temporary  alimony, 
that  her  misconduct  is  so  glaring  that  no  aid  should  be  given 
her  to  prosecute  her  suit ;  or,  if  she  is  charged  with  adultery, 
that  she  is  still  living  with  the  partner  of  her  guilt.18 

10.     C.  L.  1915,  (11404) ;  Howell,.  Mich.  143;  Rose  v.  Rose,  53  Mich. 

2nd     ed.     §11465;     This     statute  585,    19   N.   W.   R.    195;    Potts   v. 

makes  no   mention   of  temporary  Potts,  68  Mich.  495,  36  N.  W.  R. 

alimony,   but    it    is   conformatory  240. 

of  the  common  law  which  had  The  amount  of  temporary  all- 
been  acted  upon  by  the  Courts  be-  mony  to  be  allowed  is  in  the  dis- 
fore  we  had  any  statutory  pro-  cretion  of  the  Court;  Ross  v.  Grif- 
vision  on  the  subject;  Story  v.  fin,  53  Mich.  7,  18  N.  W.  R.  195; 
Story,  Walk.  Ch.  421.  Froman  v.  Froman,  53  Mich.  581, 

Without     this     power     in     the  19    N.    W.    R.    193;    Rossman    v. 

Courts,  a  wife  who  has  no  sepa-  Rossman,  62  Mieh.  429,  29  N.  W. 

rate  property  of  her   own   would  R.  33. 

be  without  means  to  support  her-  11.    Wood  v.  Wood,  2  Paige  Ch. 

self  and  children  during  the  pen-  114;    Osgood   v.    Osgood,    2   Paige 

dency  of   the  suit;    Goldsmith   v.  Ch.  621;   Smith  v.  Smith,  1  Edw. 

Goldsmith,   6    Mich.    286;    Haines  Ch.  225. 

v.  Haines,  35  Mich.  143.  12.     Osgood   v.  Osgood,  '2  Paige 

Temporary  alimony  may  be  al-  Ch.  621;   Wood   v    Wood.  '2  Paige 

lowed  though  the  wife  has  prop-  Ch.  114. 

erty   ofr   her    own,   if   the    income  13.     Fowler  v.  Fowler,  4  Abbott, 

thereof    is    not    sufficient    for    her  ( N.   Y.)    412. 
support;     Haines    v.    Haines,    35 

313 


§440  PROCEEDINGS    AFTER   ISSUE   JOINED 

§440.    Amount  of  the  Allowance. 

The  whole  matter  of  the  allowance  of  alimony  pendente  lite 
rests  in  the  sound  discretion  of  the  court  to  which  application 
is  made.  Such  allowance  should  be  limited  to  what  is  reason- 
ably necessary  for  the  support  of  the  wife  and  children  during 
the  pendency  of  the  suit,  and  to  their  reasonable  and  neces- 
sary expenses,  until  the  result  of  the  suit  establishes  her  right 
to  a  more  liberal  allowance.14 

T.he  amount  to  be  allowed,  of  course,  depends  upon  the  par- 
ticular circumstances  of  each  case,  and  in  determining  the 
amount  the  ability  of  the  husband  to  pay  should  receive  the 
fair  consideration  of  ,the  court.  The  amount  to  be  allowed 
may  be  determined  and  settled  by  the  court  without  a  refer- 
ence whenever  the  facts  sufficiently  appear  to  enable  the  court 
to  justly  and  fairly  determine  the  amount  necessary  to  be 
paid.15 

The  court  will  take  into  consideration  the  condition  and 
means  of  the  husband,  the  means  and  condition  of  the  wife, 
the  ages  and  number  of  children  to  be  cared  for,  and  the  ex- 
tent of  their  claims  upon  the  husband  and  father.  When  the 
husband  is  complainant  his  poverty  is  no  excuse,  and  will  not 
protect  him  as  a  defense  to  an  application  for  alimony,  but 
the  fact  of  such  poverty  may  be  taken  into  consideration  by  the 
court  in  fixing  the  amount  he  is  required  to  pay.  If  weekly 
or  monthly  payments  are  ordered,  they  should  be  only  in  such 
amounts  as  to  be  reasonably  sufficient  for  the  necessities  of 
the  wife  and  children  dependent  on  her  for  support,  and  not 
large  enough  to  make  it  an  object  to  prolong  the  suit. 

Probable  cause  for  the  suit,  the  wife's  necessities  and  the 
husband's  ability  are  the  controlling  considerations  in  deter- 
mining whether  alimony  pendente  lite  and  suit  money  will  be 
allowed,  and  the  amount  thereof.16 

14.  Haines  v.  Haines,  35  Mich.       Monroy,  1  Edw.  Ch.  382. 

138.  .  16.     Burgess  v.  Burgess,  25  111. 

15.  Hammond  v.  Hammond,  16       App.  525;   Filer  v.  Filer,  77  Mich. 
Clarke    (N.    Y.)    151;    Monroy    v.       469,   43  N.  W.   R.  887. 


314 


CHAPTER  XXXVII. 

OTHER  INTERLOCUTORY  PROCEEDINGS. 

§441.  Injunction  to  Restrain  Sale  or  Incumbrance  of  Property. 

§442.  Injunction  to  Restrain  Threatened  Injury. 

§443.  Proceedings  to  Compel  Payment  of  Temporary  Alimony. 

§444.  Compel  Payment  of  Temporary  and  Permanent  Alimony. 

§445.  Due  Process  of  Law. 

§441.     Injunction  to  Restrain  Sale  or  Incumbrance  of  Property. 

Besides  proceedings  for  the  award  of  temporary  alimony, 
it  frequently  becomes  necessary  in  divorce  and  annulment 
cases  to  institute  other  interlocutory  proceedings. 

A  temporary  injunction  is  sometimes  employed  to  restrain 
the  husband  from  disposing  of  his  personal  property  during 
the  pendency  of  the  proceedings  for  a  divorce  or  for  the  annul- 
ment of  a  marriage.  If  in  her  bill  for  divorce,  or  answer  and 
cross-bill,  the  wife  alleges  that  the  husband  is  about  to  dis- 
pose of  his  property,  or  that  he  threatens  to  do  so,  for  the  pur- 
pose of  preventing  the  wife  from  recovering  alimony,  the  court 
in  its  discretion  m;iy  issue  :i  temporary  injunction  to  restrain 
him  from  doing  so. 

To  entitle  the  wife  in  such  case  to  a  temporary  injunction 
ii  iinisi  In-  shown  clearly  by  the  allegations  of  the  bill  or  cross- 
bill that  there  is  Imminent  danger  that  the  husband  will  dis- 
pose of  his  property  so  as  to  prevent  the  wife  from  enforcing 
;i  decree  for  alimony  if  she  procures  such  decree.  The  bill 
should  then  be  presented  to  the  judge  of  the  court  in  which  the 
action  is  ;il»out  to  be  commenced,  and  if  he  deems  it  sufficient 
to  authorize  the  issuing  of  the  writ,  he  endorses  upon  the  bill 
an  order  that  upon  the  filing  of  the  bill  an  injunction  !>••  i> 
sued  according  to  the  prayer  thereof.  Upon  the  filing  of  the 
bill  with  such  order  endorsed,  the  clerk  of  the  court  issues*  the 
writ  under  the  seal  of  the  court,  and  it  then  may  be  served  in 
the  same  manner  that  a  summons  is  required  t<>  !»•  served.  The 
injunction  must  be  specifically  prayed  for  in  the  hill.1 

1.     0.'  0.    Rules,    1916.    No.    24,       Rule    Book.    p.    597. 
Sec.    3;     Cummins     &     Beecher's 

315 


§442   .  INTERLOCUTORY  PROCEEDINGS 

§442.     Injunction  to  Restrain  Threatened  Injury. 

A  temporary  injunction  is  also  sometimes  employed  to  re- 
strain one  of  the  parties  to  a  divorce  suit  from  injuring  the 
person  or  property  of  the  other  party.  An  injunction  will  be 
issued  for  such  purpose  only  when  it  is  made  to  appear  clearly 
to  the  court  that  threats  of  injury  to  person  or  property  have 
been  made,  and  that  there. is  imminent  danger  of  such  threats 
being  carried  into  execution. 

An  injunction  to  restrain  a  husband  from  imposing  any  re- 
straint upon  the  personal  liberty  of  the  wife  may  be  issued  up- 
on the  petition  of  the  wife,  after  the  bill  is  filed  in  an  action 
for  divorce  or  for  the  annulment  of  a  marriage.2  The  appli- 
cation for  such  injunction  may  be  made  by  the  wife,  and  if  the 
facts  set  forth  in  the  petition  are  sufficient  to  warrant  it,  the 
writ  will  be  issued.  If  the  facts  upon  which  the  application 
is  made  arise  after  the  bill  is  filed,  a  petition  should  be  filed 
by  the  wife  stating  facts  sufficient  to  satisfy  the  court 
that  a  necessity  for  such  restraint  exists.  Upon  the  applica- 
tion for  the  writ,  either  at  the  time  of  the  commencement  of 
the  suit,  or  afterwards  by  petition  or  cross-bill,*  the  circuit 
judge  may  grant  a  temporary  injunction,  or  may  make  ail  or- 
der requiring  the  other  party  to  show  cause,  at  a  time  and 
place  to  be  stated  in  the  order,  why  the  writ  should  not  issue. 
The  order  should  also  state  the  time  and  manner  in  which 
service  of  the  same  is  to  be  made.  In  case  the  circuit  judge 
of  the  circuit  in  which  the  action  is  pending  or  is  about  to  be 
commenced  "is  sick,  absent,  or  in  any  other  manner  disquali- 
fied from  ordering  or  allowing  an  injunction,  upon  due  proof 
of  suchifacts  by  affidavit,  the  circuit  judge  of  any  judicial  dis- 
trict adjoining  the  judicial  district  in  which  said  court  or 
county  is  situated,  shall  have  authority,  at  chambers,  or  at 
any  place  where  he  may  be,  to  grant  or  deny  such  injunction 
the  same  as  if  he  were  the  circuit  judge  of  the  circuit  in  which 
such  suit  is  pending  or  is  about  to  be  commenced,  and  after 
such  injunction  is  allowed,  as  aforesaid,  the  judge  ordering 
the  same  shall  have  concurrent  jurisdiction  to  modify  or  dis- 
solve the  same  with  the  presiding  judge  of  the  circuit  wherein 
surh  suit  is  pending."3 

The  object  and  purpose  of  a  temporary  injunction  in  an  ac- 
tion for  divorce  or  to  annul  a  marriage  is  to  preserve  the 

2.     C.  L.  1915,  (11405);  Howell,  3.     C.    L.    1915,    (12675);    Cum- 

2nd  ed.  §11466;  In  re  Gi  1120  Wis.       mins     &     Beecher's     Mich.     Judi- 
686.  cature  Act,   §798. 

316 


\-.\\  Mi:\  I    <>!••   TKMl'ORARY   ALIMoNY  §44:> 

rights  of  the  parties  pending  tin-  litigation,  and  to  enable  the 
court  to  do  justice  between  them  in  the  tinal  disposition  of  tin- 
case.4 

§443.     Proceedings  to  Compel  Payment  of  Temporary  Alimony. 

After  an  order  for  temporary  alimony  lias  been  granted,  a 
certified  copy  of  the  same  should  be  served  upon  the  husband 
and  also  upon  his  attorney,  and.  at  the  time  the  money  be- 
comes due  and  payable,  a  written  demand  for  the  money,  speci- 
fying the  amount  due.  should  also  be  served  upon  the  husband.5 
If  payment  of  the  money  is  refused  or  neglected  to  be  made 
without  reasonable  cause,  an  affidavit  should  be  prepared  show- 
ing the  time,  place  and  circumstances  surrounding  the  service 
of  the  certified  copy  of  the  order  for  alimony,  and  service  of  the 
written  demand  and  refusal,  the  amount  of  alimony  due, 
the  fact  that  it  has  not  been  paid,  and  the  refusal  or  con- 
tumacious neglect  of  the  husband  to  pay  the  same.  Such  af- 
fidavits, a  true  copy  of  the  written  demand  referred  to  in  the 
affidavit  of  the  person  serving  the  same,  and  a  certified  copy 
of  the  order  for  temporary  alimony,  may  then  be  presented  to 
the  court  ex  partc  and  the  court  will  then  grant  an  order  re- 
quiring the  husband  to  show  cause  why  he  should  not  be  pun 
ished  for  contempt  in  refusing  to  pay  the  alimony  ordered. 

The  order  to  show  cause  should  be  made  returnable  at  «i 
time  and  place  to  be  stated  in  the  order,  and  a  reasonble  time 
should  be  given  to  enable  a  defense  to  be  prepared.  The  order 
also  should  state  the  length  of  time  before  the  return  day 
within  which  service  of  the  same  is  to  be  made.  On  the  return 
day  of  the  order,  or  at  such  other  time  as  the  court  may  di- 
rect, the  answer  of  the  husband  to  such  order  must  be  present- 
ed to  the  court,  together  with  such  other  affidavits  in  support 
of  it*  as  the  party  or  his  attorney  may  deem  advisable. 

If  the  answer  and  affidavits  in  support  of  it  show  reasonable 
and  sufficient  cause  for  the  refusal  and  neglect  to  pay  the  ali- 
mony ordered  by  the  court,  the  proceedings  will  be  dismissed. 
If  no  sufficient  cause  is  shown,  a  precept  will  be  issued  by  the 
court  to  commit  the  husband  to  prison  until  the  amount  of 
temporary  alimony,  and  costs  due  and  payable,  is  paid.5 

The  purpose  of  this  provision  is  to  enable  the  court  to  en- 

4.  14  Cyc..   Page   661;    Scholer  2nd  ed.  §12617,  J.  A.   1915,  ("h.  :.. 
v.    Scholer,   77   Ga.   60;    Kirby   v.  Sec.  4,  Page  48,  c.  &  B.  J.  A.  1915. 
Kirby,  1  Paige    CN.  Y.)    261.  Page  148. 

5.  C.  L.  1915,  (12271);  Howell, 

317" 


§444  INTERLOCUTORY   PROCEEDINGS 

force  compliance  with  its  interlocutory  orders  for  the  payment 
of  a  sum  of  money  or  costs  where  no  other  means  of  enforce- 
ment is  provided  by  the  statute.6  Under  this  provision  it  is 
not  necessary  to  file  interrogatories  and  to  give  the  husband  an 
opportunity  to  produce  witnesses  to  rebut  the  showing  made 
by  the  wife,7  but  before  a  party  can  be  punished  by  imprison- 
ment for  refusing  payment  of  alimony  or  costs,  or  any  sum  of 
money  ordered  by  the  court,  he  should  be  given  an  opportunity 
to  be  heard.8  A  party  will  not  be  brought  into  contempt 
for  non-payment  of  alimony  unless  a  proper  demand  and  re- 
fusal is  shown.9  The  proceedings  mentioned  in  this  section 
are  applicable  only  to  the  enforcement  of  payment  of  tempo- 
rary alimony  where  a  fixed  sum  is  ordered  by  the  court  to  be 
paid  to  the  wife. 

§444.     Compel  Payment  of  Temporary  and  Permanent  Alimony. 

In  1913  the  legislature  passed  an  act  entitled:  "An  Act  to 
Facilitate  the  Collection  of  Temporary  and  Permanent  Ali- 
mon3r  to  be  Paid  in  Suits  for  Divorce." 

This  act  provides  that  "in  all  suits  for  divorce  or  separate 
maintenance,  where  an  order  or  decree  for  the  payment  of  tem- 
porary or  permanent  alimony  has  been  made,  and  where  the 
party,  whether  complainant  or  defendant,  has  appeared  in  per- 
son or  by  solicitor,  or  has  been  personally  served  with  process 
within  the  jurisdiction  of  the  court  making  such  order  or  de- 
cree for  the  payment  of  alimony,  the  court  making  such  order 
or  decree  shall  have  power  to  punish  by  fine  or  imprison- 
ment or  both,  any  neglect  or  violation  of  said  order,  upon  the 
petition  of  the  party  whose  rights  thereunder  may  have  been 
impaired,  impeded  or  prejudiced  by  such  neglect  or  violation 
of  said  order."  10 

The  next  section  provides  that  "when  any  decree  or  order 
shall  be  made  for  the  payment  of  temporary  or  permanent  ali- 
mony, to  be  paid  in  certain  stipulated  payments,  directed  to 
be  made  in  said  order  to  the  register  (now  clerk)  of  the  court, 
and  any  such  payments  shall  be  in  default,  the  party  preju- 
diced thereby  may  make  a  motion  before  the  court  making 

6.  Swartout      v.      Lucas,      102       159. 

Mich.  494,  60  N.  W.  R.  973.  9.     Brown    v.    Brown,    22    Mich. 

7.  Ervay  v.    Ervay,    120  Mich.       299;    Edison    v.   Edison,   56    Mich. 
525,  79  N.  W.   R.   802.  185,  22  N.  W.  R.  264. 

8.  Steller   v.    Steller,   25  Mich.          10.     C.  L.  1915,    (11443); 

318 


I,    I'AY.MKNT    <>T    AUMo.NY 

such  order,  showing  by  the  records  in  the  register's  i  clerk's  i 
oflice  i  hiit  such  default  h;is  been  made,  iiiul  thereupon  Hie  court 
Shall  forthwith  issue  :m  attachment  to  arrest  such  piirly  in  de 
fault  and  bring  I'ini  immediately  before  tlie  court  to  answer 
for  such  neglect.11  The  next  section  provides  that  "no  demand 
of  any  kind,  or  notice  of  the  making  of  the  order  for  the  pay- 
ment of  such  alimony,  shall  be  necessary  in  the  cases  enumer- 
ated in  the  lirst  section  of  this  act."1-' 

When  such  attachment  is  issued  it  is  required  to  he  served 
by  the  sheriff  of  the  county  or  bv  any  otlicer  authorized  to 
make  such  arrest.  Such  otlicer  must  arrest  the  party  named 
in  the  attachment  and  keep  him  in  actual  custody  and  bring 
him  forthwith  before  the  court  issuing  such  attachment,  and 
keep  and  detain  hint  until  the  court  shall  make  some  further 
order  in  the  premises. 

The  party  arrested  under  the  provisions  of  this  act  may  be 
discharged  from  such  arrest  upon  executing  and  delivering  to 
the  register  (clerk)  of  the  court  issuing  such  attachment  a 
bond  with  two  suilicient  sureties,  in  a  penal  sum  to  be  fixed 
by  the  register  (clerk),  conditioned  for  the  immediate  and 
faithful  performance  of  the  terms  of  said  order  for  the  pay- 
ment of  alimony,  or  said  party  may  be  discharged  from 
arrest  by  such  other  order  in  the  premises  as  the  court  may 
make  therein,14 

This  statute  is  a  peculiar  one  and  there  may  be  a  very  seri- 
ous question  whether  it  has  any  force  so  far  as  the  object  ex- 
pressed in  its  title  is  concerned.  The  object  expressed  in  the 
title,  and  its  avowed  purpose,  is  "to  facilitate  the  collection  of 
temporary  and  permanent  alimony."  The  act  itself  gives  the 
court  power  to  punish  by  tine  and  imprisonment,  or  both,  any 
neglect  or  violation  of  such  order,  upon  the  petition  of  the 
party,  whose  rights  thereunder  are  impaired,  impeded  or  prej- 
udiced by  such  neglect.  The  act  applies  only  to  an  order  or 
decree  directing  money  to  be  paid  in  certain  stipulated 
amounts  to  the  register  (clerk  i  of  the  court.  It  does  not  pur- 
port in  any  way  to  change,  add  to,  or  take  from  the  authority 
<>t  the  court  to  enforce  the  payment  of  alimony  by  contempt 
proceedings  as  provided  by  Compiled  Laws  of  1SH7.  Section 
HIS'.M.  Howell's  Statutes.  L'nd.  Ed.,  Section  li'iilT.  and  Tom- 
piled  Laws  of  IS'.C.,  Section  10S!M>.  Subdivision  Three.  Il«,\v 
ell's  Statutes  2nd.  Kd..  Section  PJCd  I.  unless  Section  Six. 


11.  C.  L.  1915,  (11444);          13.  C.  L.  1915,  (11446); 

12.  C.  L.  1915,  (11445);         14.  C.  L.  1915,  (11447); 


319 


§444  INTERLOCUTORY   PROCEEDINGS 

which  provides  that  "all  acts  or  parts  of  acts  contravening 
any  of  the  provisions  of  this  act  are  hereby  repealed,"  by  im- 
plication repeals  those  sections.  The  Judicature  Act  of  1915 
does  not  in  express  terms  repeal  act  No.  379  of  the  Public  Acts 
of  1913,  and  if  the  latter  act,  which  took  effect  August  15th, 
1913  repealed  the  former  statute  above  referred  to,  they  were 
re-enacted  without  change  by  the  Judicature  Act,  which  took 
effect  January  1st,  1916.15 

The  re-enactment  of  the  earlier  statutes,  however,  would  not 
necessarily  repeal  entirely  Act  No.  379  of  the  Public  Acts  of 
1913,  for  the  reason  that  some  of  its  provisions  are  not  incon- 
sistent with  the  provisions  of  the  Judicature  Act,  and  if  valid 
on  other  grounds  the  act  of  1913  is  still  in  force.  It  may  be 
questioned  seriously,  however,  whether  the  act  of  1913  above 
referred  to  is  valid  on  constitutional  grounds.  No  proceedings 
can  be  had  under  the  provisions  of  the  act  until  some  specified 
sum  of  money  becomes  due  and  payable  according  to  the  terms 
of  the  order  or  decree.  When  such  sum  is  due  and  payable  it 
becomes  a  debt,  due  and  owing  by  the  party  against  whom  the 
order  is  made,  and  the  act  in  question  authorizes  the  court  to 
punish  the  party  for  non-payment  of  such  debt,  by  fine  or  im 
prisonment  or  both.  With  imprisonment  for  debt  forbidden 
by  the  constitution,  a  party  cannot  be  imprisoned  for  non-com- 
pliance with  the  order  of  the  court  for  the  payment,  of  money, 
except  on  the  ground  of  contempt  of  the  authority  of  the 
court.16  While  it  is  very  clear  that  it  is  not  the  intention  or 
purpose  of  the  constitution  to  take  from  the  courts  the  power 
to  punish  a  contempt  of  the  authority  of  the  court,  the  pun- 
ishment provided  for  by  this  statute  does  not  appear  to  be  of 
that  kind.  Such  punishment  may  be  by  fine,  in  such  amount 
as  the  court  may  see  fit  to  impose,  in  case  the  party  is  unable 
to  give  the  bond  with  two  sureties  provided  for  in  Section  Five 
of  the  act,  and  in  addition  to  a  fine  the  court  may  impose  such 
term  of  imprisonment  as  it  may  think  proper. 

It  would  seem  to  be  the  safer  practice,  until  such  time  as  the 
courts  have  occasion  to  pass  upon  the  validity  of  this  act,  to 
treat  it  as  superseded  by  the  Judicature  Act  before  mentioned. 

The  authority  of  the  legislature  to  enact  a  law  for  the  pun- 
ishment of  a  person  by  fine  and  imprisonment,  without  giving 
him  any  sort  of  right  to  a  defense,  may  well  be  doubted.  The 

15.     C.  L.  1915,  (12268  &  12271) ;  16.     Steller  v.  Steller,  25  Mich. 

Cummins  &  Beecher's  Mich.  Judi-      159. 
cature  Act,    §391    and   §394. 

320 


111  i:  ri:ori:ss  or  LAW  §445 

act  in  question  provides  that  "no  demand  of  any  kind  or  no- 
tice of  the  making  of  tin-  order  fop  the  payment  of  such  ali- 
mony shiill  he  necessary  in  the  rases  enumerated  in  the  tirst 
section  of  the  act."  There  seems  (o  he  an  unbrokenn  line  of 
authority  that  before  a  person  can  be  committed  for  contempt 
of  (lie  authority  of  the  courts,  there  must  lie  a  personal  demand 
for  compliance  with  some  order  which  the  court  has  made, 
and  a  contumacious  refusal.17 

§445.     Due  Process  of  Law. 

The  act  of  UM.'t  is  well  calculated  to  deprive  a  person  of  lib 
erty  and  property  or  both,  without  due  process  of  law.  in  as 
much  as  it  gives  the  party  proceeded  against  in  accordance 
with  its  provisions,  no  opportunity  to  be, heard  in  defense  of 
the  accusation  made  against  him.18  The  fundamental  con- 
ception of  a  court  of  justice  is  condemnation  only  after  a  hear 
ing.  To  say  that  courts  have  inherent  power,  or  that  the  legis 
lalure  may  give  them  the  power,  to  deny  all  right  of  the  citizen 
to  defend  against  an  accusation,  and  to  render  decrees  with- 
out a  hearing,  is.  in  the  very  nature  of  things,  to  convert  the 
court  exercising  such  authorty  into  an  instrument  of  wrong 
and  oppression,  and  hence  to  strip  it  of  that  attribute  of  jus 
lice  in. on  which  the  exercise  of  judicial  power  depends.19  The 
principle  that  a  person  cannot  be  condemned  without  a  hear- 
ing lies  at  the  foundation  of  all  well  ordered  systems  of  juris- 
prudence. Wherever  one  is  assailed  in  his  person  or  prop- 
erty, there  he  may  defend,  for  the  liability  and  the  right  are 
inseparable.  This  is  a  principle  of  natural  justice,  recognized 
as  such  by  the  common  intelligence  and  conscience  of  all 
civilized  nations.  A  sentence  of  a  court,  pronounced  against 
a  party  without  a  hearing,  or  without  giving  him  an  oppor- 
tunity to  be  heard,  is  not  a  judicial  determination  of  his 
rights,  and  is  not  entitled  to  respect  in  any  other  tribunal.20 

17  Edison  v.  Edison,  56  Mich.  law  involves  and  implies  not  only 
185,  22  N.  W.  R.  246;  Brown  v.  the  right  to  be  heard,  but  a  bear- 
Brown,  22  Mich.  247;  Steller  v.  ing  in  compliance  with  estab- 
Steller,  25  Mich.  159.  lished  methods  of  procedure: 

18.  Michigan  Constitution,  Art.  parte  Wall,  107   U.   S.   289,  i'T    L. 
2,  Sec.  16;  U.  S.  Constitution,  Art.  ed.    662;    Hurtado    v.    California, 
14,   Sec.  2.  110  U.  S.  535,  28  L.  ed.  238;  Hagar 

19.  Hovey  v.  Elliot,  167  U.  S.  v.    Reclamation   District    No.   108, 
409,  42  L.  ed.  215.  Ill  U.  S.  708,  28  L.'  ed.  572;   Har- 

20.  McVeigh  v.  U.  S.,  78  U.  S.  ris  v.  Hardeman,  55  IT.  S.  341.  14 
259,  20  L.  ed.  80;   Due  process  of  L.  ed.  447;   Lasere  v.  Rochereau, 

321 


INTERLOCUTORY    PROCEEDINGS 


The  enforcement  of  the  only  sentence  which  the  court  can  im- 
pose under  the  provisions  of  Act  No.  379  of  the  Public  Acts 
of  1913  would  apparently  deprive  the  party  against  whom 
such  sentence  or  order  ^s  made  of  his  liberty  or  property  with- 
out due  process  of  law. 


84  U.  S.  438,  21  L.  ed.  695;  Tay- 
lor v.  Porter,  4  Hill,  140,  40  Am. 
Dec.  274;  Pennoyer  v.  Neff,  95  U. 
S.  733,  24  L.  ed.  572;  Scott  v.  Mc- 
Neal,  154  U.  S.  34,  38  L.  Ed.  896; 
Grain  v.  U.  S.  162,  40  L.  ed.  1097; 
Walker  v.  Sauvinet,  92  U.  S.  93, 
23  L.  ed.  679. 

Due  Process  of  Law:  The  pro- 
vision of  the  constitution  that  no 
person  shall  be  deprived  of  life, 
liberty,  or  property  without  due 
process  of  law  is  intended  to  se- 
cure to  the  citizen  the  right  to  a 
trial  according  to  the  forms  of 
law,  of  the  question  of  his  lia- 
bility and  responsibility  before 
his  person  or  his  property  shall 
be  condemned;  Parsons  v.  Rus- 
set, 11  Mich.  113,  83  Am.  Dec.  728. 

Due  Process  of  Law,  within  the 
meaning  of  the  constitution,  is 
laws  which  are  general  in  their 
operation  and  not  special  acts  of 
legislation  passed  to  affect  the 


rights  of  particular  individuals 
against  their  will,  and  in  a  way 
which  the  same  rights  of  other 
persons  are  not  affected  by  exist- 
ing laws;  Attorney  General  v. 
Jochim,  99  Mich.  358,  58  N.  W. 
R.  611,  23  L.  R.  A.  699,  41  Am. 
"St.  R.  606. 

The  due  process  of  law  required 
by  the  constitution  means  that 
notice  or  summons  shall  be  given 
or  served  by  which  a  party  is 
tendered  his  day  in  court,  with 
the  right  to  frame  an  issue  and 
be  heard,  before  judgment  can 
be  rendered  or  execution  issued 
which  will  take  away  his  liberty 
or  his  property;  Rouse,  Hazzard 
&  Co.  v.  Donovan,  104  Mich.  233, 
62  N.  W.  R.  359,  27  L.  R.  A.  577, 
53  Am.  St.  R.  457. 

Due  Process  of  Law.  is  not 
necessarily  judicial  process;  Wei- 
mer  v.  Banbury,  30  Mich.  201. 


322 


• 


XXXVIII. 
MOTIONS  AND  AFFIDAVITS. 

§446.  Motions  Classified. 

§447.  Motions   Granted  of  Course. 

§448.  Special  Motions  and  Petitions. 

§449.  Motions — Framing  Issues  on  Hearing. 

§450.  Witnesses   on   Hearing   of  Motions. 

§451.  Common   and   Special   Orders. 

§446.    Motions  Classified. 

Motions  in  causes  pending  in  court  are  of  two  kinds,  mo- 
tions of  course  and  special  motions.  Motions  of  course  are 
those  applications  which  require  no  notice,  and  upon  which 
orders  may  be  entered  by  the  clerk  of  the  court  without  ac- 
tual application  to  the  court.  A  special  motion  is  one  not 
granted  of  course,  but  which  is  founded  on  the  pleadings,  up- 
on affidavits,  petitions,  or  some  previous  order  of  the  court, 
and  which  cannot  be  granted  without  special  application  to 
the  court.  Special  motions  are  of  two  kinds ;  ex  parte,  where 
no  notice  of  the  application  is  necessary  to  be  given,  and 
motions,  special  notice  of  which  is  required  to  be  given  ac- 
cording to  the  rules  and  practice  of  the  court. 

$447.     Motions  Granted  of  Course. 

An  application  or  motion  for  an  order  which  may  be  granted 
of  course  without  special  application  to  the  court  must  be 
supported  by  affidavit  or  sworn  petition.  Such  motions  in 
divorce  cases  are  entries  of  orders  pro  confesso,  for  non  ap- 
pearance, for  not  putting  in  an  answer  after  service  of  a  ropy 
of  the  bill,  for  not  serving  copy  of  the  bill  after  appearance 
and  demand  therefor,  and  all  applications  which  according  to 
the  rules  and  practice  of  the  court  may  be  made  without  notice 
and  without  special  application  to  fhe  court. 

In  all  such  applications  in  chancery  cases  the  attorney  for 

the  party  in  whose  behalf  the  application  is  made  prepares 

1 

323 


§448  MOTIONS   AND    AFFIDAVITS 

and  files  with  the  clerk  of  the  court  affidavits  setting  forth 
the  facts  which  entitle  the  party  to  the  order  desired.  The 
attorney  should  also  prepare  and  sign  such  order  as  his 
client  is  entitled  to  on  the  showing  made  by  the  affidavits, 
and  such  order  should  be  signed,  filed  and  entered  by  the  clerk. 
No  formal  motion  in  writing  is  required  in  those  applica- 
tions which  are  made  and  granted  of  course. 

§448.     Special  Motions  and  Petitions. 

All  special  motions  and  petitions  (except  motions  for  con- 
tinuances and  motions  to  strike  from  the  calendar  i  must  be 
in  writing  and  signed  by  the  attorney  or  counsel  of  the  party 
in  whose  behalf  they  are  made,  and  are  required  to  set  out 
briefly  and  distinctly  the  grounds  upon  which  they  are  found- 
ed, and  must  be  filed  in  the  office  of  the  clerk,  together  with 
the  affidavits  supporting  them,  on  or  before  the  day  on  which 
they  are  noticed  for  argument.1  Notice  of  argument  of  such 
special  motions  and  petitions  as  require  notice,  together  with 
a  copy  thereof  and  of  the  affidavits  on  which  they  are  based, 
must  be  served  upon  the  opposite  attorney  at  least  four  days 
prior  to  the  time  noticed  for  hearing  the  same,  but  upon  good 
cause  shown  the  court  may  hear  the  argument  on  shorter  no- 
tice.2 Motions  and  petitions  which  cannot  be  heard  on  the 
day  for  which  they  are  noticed  will  stand  continued  from 
day  to  day,  in  the  absence  of  a  special  order,  without  any 
special  order  of  continuance.  Not  more  than  one  counsel 
will  be  heard  on  each  side  on  the  argument  of  any  motion  or 
petition,  and  the  mover  is  entitled  to  open  the  argument  and 
to  repl^  to  the  argument  of  opposing  counsel.3  The  provisions 
of  the  rule  requiring  four  days  notice  of  special  motions  and 
requiring  such  motions  to  be  in  writing  are  applicable  to  • 
motions  to  extend  the  time  for  settling  a  bill  of  exceptions 
in  a  law  case,  and  a  case  on  appeal  in  a  chancery  case.4  In 
such  cases  the  court  has  no  authority  to  extend  the  time  for 
more  than  eighty  days  after  judgment,  unless  the  party  ap- 
plying for  such  extension  has  complied  with  the  requirements 

1.  C.    C.    Rules,    1916,    No.    15,  3.     C.    C.  .Rules,    1916,    No.    15, 
Sec.     1;     Cummins    &    Beecher's  Sec.    3-4;    Cummins    &    Beecher's 
Mich.   Rule   Book,   p.    577.  Mich.  Rule  Book,  p.  578. 

2.  C.    C.    Rules,    1916,   No.    15,  4.     Burgess    v.    Circuit    Judge, 
Sec.     2;     Cummins     &     Beecher's  171  Mich.  583,  137  N.  W,  R.  247. 
Mich.  Rule  Book,  p.  577. 

324 


wrr.xKssr.s  ON  ni:.\Ki.\<;  or  MOTIONS  ?  I-~.M 

of  this  rule/1     The  notice  and  showing  required  by  the  rule 
may  he  waived.9 

§449.     Motions    Framing  Issues  on  Hearing. 

Tt  appears  T<>  he  well  settled  that  disputed  questions  of 
fart.  ;is  a  p-neral  mle,  will  not  be  tried  on  affidavits,7  but 
i|iiestions  pertaining  merely  to  the  mode  of  procedure,  and 
tho^e  matters  which  depend  on  the  discretion  of  the  court, 
may  as  a  general  mle  be  tried  in  that  manner.8  Where  a 
special  motion  involves  disputed  questions  of  fact  and  per- 
tains t<»  matters  which  are  not  discretionary  with  the  court, 
the  court,  in  its  discretion,  may  direct  an  issue  to  be  framed 
on  the  hearing.0  Since  the  enactment  of  the  Judicature  Art 
of  191- ">.  which  abolishes  pleas  in  abatement  and  pleas  to  the 
jurisdiction,  as  well  as  picas  in  chancery  cases  and  demur- 
rers, and  provides  tha,t  those  questions  which,  under  the  for- 
mer practice,  were  required  to  be  presented  by  plea  shall  now 
be  raised  by  motion  to  dismiss,  it  would  seem  that  there  is 
more  reason  for  framing  issues  on  special  motions  than  for- 
merly. 

§450.     Witnesses  on  Hearing  of  Motions. 

The  Judicature  Act  of  1915  provides  that  ''upon  the  hear- 
ing of  any  motion  or  petition,  when  any  question  of  fact  is 
involved,  the  court  hearing  such  motion  or  petition  may.  in 
its  discretion,  if  it  deems  it  necessary  in  order  to  reach  a 
just  conclusion  as  to  such  facts,  require  the  production  of 
all  or  any  of  the  witnesses  having  knowledge  of  the  matters 

5.  Hill  v.  Hill,  114  Mich.   594,      Mandell,  171  Mich.  588,  137  N.  W. 
72    N.    W.    R.    597;    Lake    Shore      R.  247. 

Rail   Road   Co.   v.    Circuit  Judge,  7.     Brown     v.     Thompson,     29 

116  Mich.   399,  74  N.  W.  R.  529;  Mich.  72;  Lyon  v.  Smith,  66  Mich. 

Roach  v.  Circuit  Judge,  117  Mich.  676,    33    N.    W.    R.    753;    Voight 

242,   75  N.  W.   R.   465;    Singer  v.  Brewery  Co.  v.  Circuit  Judge,  103 

Livingston     Circuit     Judge,     117  Mich.  190,  61  N.  W.  R.  343;  Sher- 

Mich.  318,  75  N.  W.  R.  609;  Hayes  rill  v.  Grand  Trunk  Railway  Co., 

v.  Ionia  Circuit  Judge,  125  Mich.  161  Mich.   495,  126  N.  W.  R.  830. 

277,  84  N.  W.  R.   141;   Kaiser  v.  8.     Parker  v.  Circuit  Judge,  24 

Hosmer,  162  Mich.  247,  127  N.  W.  Mich.  408;  Grand  Rapids  and  In- 

R.  336;  Pettinger  v.  Montmorency  diana  R.  R.  Co.  v.  Circuit  Judge, 

Circuit  Judge.  164  Mich.  463,  129  159  Mich.  210,   123  N.  W.  R.  591. 

N.  W.  R.  676 ;  Burgess  v.  Mandell,  9.     Haywood     v.     Johnson,     41 

171  Mich.  583.  137   N.  W.  R.  247.  Mich.     598,     2     N.     W.     R.     926; 

6.  Wilkins    v.    Circuit    Judge,  Stringer  v.  Dean,  61  Mich.  196,  27 
125  Mich.  628,  84  N.  W.  R.  1107;     .  N.  W.  R.  886;  Turner  v.  St.  Clair 
Culver  v.  Circuit  Judge,  141  Mich.  Tunnel  Co.,   102  Mich.  574,  61  N. 
644,  lor,  \.   \v    R.  139,  Burgess  v.  W.   R.   72. 

325 


§450  MOTIONS    AX1>    AFFIDAVITS 

of  fact  involved  on  such  motion  before  him  in  open  court."10 
Tn  case  the  facts  set  forth  in  the  affidavits  or  petition  on  which 
a  special  motion  is  based  are  denied  by  affidavit  or  answer 
by  the  party  against  whom  such  motion  is  made,  the  court 
before  which  the  motion  is  pending  may,  in  its  discretion, 
frame  an  issue  and  require  all  or  any  of  the  witnesses  having 
knowledge  of  such  facts  to  testify  orally  in  open  court.  Ordi- 
narily the  court  will  not  frame  such  issue,  nor  require  the 
oral  examination  of  the  witnesses  in  open  court,  except  in 
those  cases  where  the  relief  sought  is  mandatory  and  not 
within  the  discretion  of  the  court  and  depends  upon  the  facts 
involved  in  the  motion.  By  a  statute  which  has  been  in 
force  many  years  in  this  state,  it  is  provided  that  "when- 
ever a  suggestion  has  been  made  upon  the  record,  or  in  any 
stage  of  the  proceedings  in  any  cause,  which  the  adverse  party 
shall  have  the  right  to  controvert,  a  copy  of  such  suggestion 
sha.ll  be  served  upon  the  adverse  party  or  his  attorney  in  the 
same  manner  as  other  pleadings,  and  such  party  may  plead 
thereto  according  to  the  practice  of  the  court,  in  the  same 
manner  and  within  the  same  time  as  to  a  declaration.  If 
an  issue  of  fact  be  joined  on  any  such  suggestion,  the  same 
shall  be  tried  and  judgment  rendered  therein  as  on  other 
issues.  The  party  making  such  suggestion  may  be  non-suited 
and  may  have  judgment  of  non-pros,  or  discontinuance  entered 
against  him  for  the  same  causes  and  in  the  same  cases  as  in 
suits  at  law."11 

The  suggestion  contemplated  by  this  statute  is  a  statement 
formally  entered  on  the  record  of  some  fact  or  circumstance 
which  will  materially  affect  the  further  proceedings  in  the 
case  but  which  for  some  reason  cannot  be  pleaded.  It  has 
been  held  that  a^special  motion,  where  it  is  based  upon  a 
statement  of  facts  which  the  adverse  party  is  entitled  to 
controvert  and  which  for  any  reason  cannot  be,  pleaded, 
comes  within  the  terms  of  this  statute.12  Under  the  new 

10.  C.  L.  1915,    (12577)  ;    Cum-  Judge,  97  Mich.  622,  57  N.  W.  R. 
mins    &    Beecher's    Mich.    Judica  190;    Turner  v.    St.  Glair  Tunnel 
ture  Act,   §700.  Co.,  102  Mich.  574,  and  note,  61  N. 

11.  C.  L.  1915,  (12762) ;  Howell,  W.  R.  72;  Caille  Bros.  Co.  v.  Sagi- 
2nd  ed.   §13116  et  seq,  J.  A.  1915,  naw  Circuit  Judge,  155  Mich.  480, 
Ch.  20,  Sec.  26  et  seq,  Page   148.  120  N.  W.  R.  6 ;  Grand  Rapids  and 

12.  Hubbel  v.  McKinnon,  22  D.  Indiana    R.     R.     Co.     v.     Circuit 
L.   N.    431;    Haywood  v.  Johnson,  Judge,   161   Mich.   181,   126   N.  W. 
41    Mich.    598,    2    N.    W.    R.    670;  R.  56;  Foley  v.  Grand  Rapids  and 
Muskegon  Booming  Co.  v.  Circuit  Indiana  R.  R.  Co.,  168  Mich.  496, 

134  N.  W.  R.  446. 
326 


fo.M.\lo\    AM>    SPECIAL   UKIMiKS  ^  \7>\ 

practice  provided  for  by  the  Judicature  Act.  ;ill  dilatory 
ideas  having  been  abolished,  an  issue  undoubtedly  may  In- 
framed  under  a  motion  to  dismiss  made  before  answer,  or.  in 
case  a  question  which  might  have  been  raised  heretofore,  by 
dilatory  plea  in  a  law  case  shall  be  raised  in  the  notice  at- 
tached to  the  plea,  or  in  a  chancery  case  by  the  answer,  then 
such  issue  may  be  framed  and  brought  on  for  hearing  and 
determination  by  the  court  in  advance  of  the  trial  on  the 
merits.13  And  under  the  new  practice  the  issue  which  may 
he  so  framed  may  be  tried  by  the  court,  under  the  provisions 
of  the  section  of  the  statute  last  cited,  or,  if  it  be  such  an 
issue  as  is  mentioned  in  the  statute,  an  order  of  reference 
may  l»e  made  upon  motion,  under  the  provisions  of  another 
statute,  also  re-enacted  as  part  of  the  Judicature  Act,  which 
provides  that  "when  a  question  of  fact  other  than  upon  the 
pleadings  shall  arise  upon  motion  or  otherwise,  either  before 
or  after  judgment,  the  circuit  judge  in  vacation,  by  an  order 
under  his  hand,  may  direct  a  reference  on  the  written  appli- 
cation of  either  party."1* 

The  Judicature  Act  by  the  next^section  provides  for  the 
practice  before  the  referee,  giving  to  such  referee  the  power 
to  administer  oaths,  to  issue  process  to  compel  the  attendance 
of  witnesses,  to  grant  continuances,  and  to  conduct  the  pro- 
ceedings generally;  and  after  hearing  the  proofs  to  report  to 
the  court  in  writing,  showing  separately  the  facts  found  and 
his  conclusions  of  law.16 

§451.     Common  and  Special  Orders. 

All  orders  to  which  a  party  is  entitled  of  course  accord- 
ing to  the  rules  and  practice  of  the  court,  without  showing 
special  cause,  are  called  common  orders.  All  common  o"rders 
and  all  orders  entered  by  consent  of  the  parties  may  be  filed 
with  the  clerk  of  the  court  at  any  time,  as  well  in  vacation 
as  during  term,  and  the  day  when  the  order  is  filed  must  be 
noted  thereon.  A  party  may  tile  such  order  as  he  may  con- 

13.  C.  L.   1915,    (12641);   Cum-  mins    &    Beecher's   Mich.    Judica- 
inins    &    Beecher's    Mich.    Judica-  ture  Act,   §764.     Hollands  v.  Cir 
ture  Act,    §764.  <  nit  Judge,  117  Mich.   326,  75  N. 

14.  C.  L.  1915,  (12640);  Howell,  W.  R.  886;  Church  v.  Anti  Kalso 
2nd  ed.  §12742,  J.  A.  1915,  Ch.  18.  mine  Co.,  118  Mich.  219,  76  N.  W. 
Sec.  68,  Page  124.  R.  383. 

15.  C.   L.   1915.    (12641);   Cum 

327 


§451  MOTIONS    AND    AFFIDAVITS 

ceive  himself  to  be  entitled  to>,  but  at  his  peril.  The  most 
usual  common  orders  in  divorce  cases  are  orders  pro  confesso. 
Since  the  adoption  of  the  Judicature  Act  requiring  proofs  in 
chancery  cases  to  be  taken  in  open  court  unless  otherwise 
directed  by  the  Court,  orders  of  reference  to  a  commissioner 
to  take  proofs  and  report  his  opinion  thereon  to  the  court, 
which  formerly  were  classed  as  common  orders,  under  the 
new  practice  should  be  denominated  special  orders,  because 
they  can  now  be  made  only  on  special  application  to  the 
court. 

All  orders  which  are  made  on  special  application  to' the 
court  and  by  its  direction  must  be  signed  by  the  judge  of  the 
court,  filed  with  the  clerk,  and  entered  in  the  proceedings  of 
the  court.  All  orders  made  by  the  judge  at  chambers  must 
be  signed  by  him  and  filed  in  the  cause.16 

16.     C.  C.  Rules,  1916,  No.  17;       Book,  p.  579. 
Cummins  &  Beecher's  Mich.  Rule 


328 


CIIAITKK   XXXIX. 

HKAIMNil   AND  DECREE. 

§452.  Jury  Trials  in  Divorce  and  Annulment  Cases. 

§453.  Proofs  in  Divorce  and  Annulment  Cases: — When  and  How 
Taken. 

§454.  Notice  of  Hearing  not  necessary. 

§455.  Cross-Examination  of  Opposite   Party. 

§456.  Witnesses: — Compelling  Attendance  and  Testimony. 

§457.  Warrant  for  Apprehension  of  Delinquent  Witness. 

§458.  Mode  of  Administering  Oath  to  Witnesses. 

§459.  Competency  of  Witness — Religious  Opinions. 

84QO.  Competency  of  Witness: — Appreciation  of  Nature  and  Obliga- 
tion of  Oath. 

§461.  Children  as  Witnesses. 

§462.  Conviction  of  Crime. 

§463.  Admissibility  of  Testimony. 

§464.  Court  to  Rule  on  All  Objections. 

§465.  Argument  of  Divorce  Cases. 

§466.  Decree: — Preparing  and  Settling. 

§467.  Rehearing: — Application  for. 

§468.  Enrollment  of  -Decree. 

§469.  Discharge  and  Satisfaction  of  Decree. 

§470.  Enforcement  of  Decree. 

§452.     Jury  Trials  in  Divorce  and  Annulment  Cases. 

The  statute  provides  that  suits  for  divorce  or  to  annul  or 
affirm  a  marriage  shall  be  conducted  in  the  same  manner  as 
other  chancery  cases.1  This  being  true,  the  court  may  award 
issues  to  be  tried  by  a  jury,  in  the  same  manner  and  with  the 
same  effect  as  in  other  chancery  suits.  The  statute  also  pro- 
vides that  all  issues  upon  the  legality  of  a  marriage  (except 
\\  IKTC  ;i  marriage  is  sought  to  be  annulled  on  the  ground  of 
ih»-  physicial  incapacity  of  one  of  the  parties)  shall  be  tried 
by  a  jury  of  the  country." 

1.  C.  L.  1915.  (11403) ;  Howell,  party  the  right  if  he  chooses  to 
2nd  ed.   §11464.  exercise   it,   to   have    the     issues 

2.  C.    L.    '97,     (444);    Howell,  tried  by  a  jury.    The  parties  will 
2nd    ed.    §11961;    this    statute    is  be    deemed    to    have    waived    th<> 
not  mandatory  upon  the  Court  in  right  to  a  jury  trial,  unless  one 
all   cases,    but    secures   to    either  of  the  parties,  after  issue  joined 

329 


§453  HEARING   AND   DECREE 

But  where  a  defendant  in  a  divorce  case  denies  the  validity 
of  a  marriage  and  makes  no  demand  or  request  that  the  is- 
sue as  to  the  legality  of  the  marriage  be  submitted  to  a  jury, 
he  will  be  deemed  to  have  waived  the  right.3  In  a  suit  in 
equity  to  annul  a  marriage  the  circuit  court  has  discretionary 
authority  under  this  statute  to  grant  an  application  for  sub- 
mission to  a  jury  of  the  question  whether  the  plaintiff  was 
mentally  competent  to  enter  into  the  marriage  contract,  even 
though  the  suit  has  been  several  times  noticed  for  hearing 
by  the  party  making  the  application  and  none  of  the  notices 
have  mentioned  a  jury  trial.  The  statute,  however,  is  not 
mandatory,  and  the  circuit  judge  under  such  circumstances 
may  properly  deny  the  application  on  the  ground  of  waiver. 
The  verdict  contemplated  by  the  statute  is  advisory  only,  and 
not  binding  upon  the  court.4 

It  has  been  held  that  it  is  not  competent  for  the  legislature 
to  enact  a  law  providing  that  in  chancery  cases  either  party 
shall  be  entitled  to  a  jury  trial,  to  be  demanded  in  the  same 
manner  as  in  an  action  at  law,  and  that  the  verdict  of  such 
jury  on  any  question  of  fact  shall  have  the  same  force  and 
effect  in  the  circuit  court  in  chancery  and  in  the  Supreme 
Court  on  appeal  as  the  verdict  of  a  jury  in  an  action  at  law. 
Such  legislation  has  been  held  unconstitutional  in  this  state.5 

§453.    Proofs  in  Divorce  and  Annulment  Cases: — When  and 
How  Taken. 

In  all  divorce  and  annulment  cases,  whether  at  issue  or 
heard  on  bill  taken  as  confessed  by  the  defendant,  the  testi- 
mony in  support  of  the  allegations  of  the  bill  must  be  taken. 
The  court  has  no  authority  to  decree  a  divorce  or  pronounce 
a  sentence  of  annulment  or  affirmance  of  a  marriage,  on  the 
bill  being  taken  as  confessed  by  the  defendant,  without  proofs 
sustaining  the  allegations  of  the  bill  of  complaint.  And  under 
the  present  practice  such  proofs  must  be  taken  in  open  court, 
as  in  actions  at  law,  unless  the  court  shall  specially  order 

applies  to  the  Court  for  a  feigned  70  N.  W.  R.  1032;  Flannagan  v. 

issue;  Schafberg  v.  Schafberg,  52  Flannagan,  122  Mich.  386,  81  N. 

Mich.  431;  18  N.  W.  R.  202.  W.  R.  258. 

This  section  was  repealed  by  4.  Maier  v.  Circuit  Judge,  112 

the  Judicature  Act.  .  Mich.  491,  70  N.  W.  R.  1032. 

3.  Schafberg  v.  Schafberg,  52  5.  Brown  v.  Kalamazoo  Cir- 

Mich.  429,  18  N.  W.  R.  202;  Walker  cuit  Judge,  75  Mich.  274,  42  N.  W. 

v.  Circuit  Judge,  112  Mich.  386,  R.  827. 

330 


XOTICI:  OK  IIKAKIM;  NOT  XKCKSSARY 

otherwise.0  No  proofs  can  be  taken,  except  conditionally  for 
tlie  purpose  of  perpetuating  the  testimony,  in  any  di\<>r<  ••  case 
until  the  expiration  of  two  months  from  tli<>  lime  ol'  lilinu  the 
hill,  except  \\here  the  "Ton  i  id  o!'  divorce  charged  in  the  bill 
is  desertion.7  In  every  divorce  case,  whether  contested  or 
not.  the  court,  for  the  furtherance  of  justice,  may  call  upon 
either  party  or  any  witness  therein  to  testify  orally  in  open 
court,  and  may  continue  and  keep  the  case  open  lor  that 
purpose,  and  may  issue  process  to  compel  the  attendance  of 
such  party  or  witness  before  the  court.8 

Rut  no  party  or  witness  whose  evidence  may  not  be  received 
under  the  laws  of  this  state  can  be  called  upon  and  compelled 
to  testily  under  the  provisions  of  this  rule.9  In  a  divorce- 
case  one  party  may  compel  the  other  to  testify..  No  privilege 
is  conferred  upon  either  party,  permitting  one  to  decline 
to  take  the  stand  as  a  witness  upon  the  request  of  the  other. 
I  Jut  n  |  »arty  is  not  required  to  attend  at  the  hearing,  and  if 
the  other  party  desires  such  attendance  he  may  procure  it  by 
the  service  of  a  subpoena  for  that  purpose,  or  a  deposition 
may  be  taken  when  necessary.  When  one  party  calls  the  other 
as  a  witness,  he  thereby  consents  to  his  testimony.10  The 
testimony  of  the  parties  can  be  taken  only  in  open  court,  and 
such  testimony  cannot  be  received  in  support  or  in  defense  of 
a  charge  of  adultery.11  The  court  has  the  power  under  the 
statute  to  call  the  defendant  as  a  witness  in  a  pro  confesso 
divorce  case.12 

$454.     Notice  of  Hearing  not  Necessary. 

Under  the  new  practice  provided  by  the  Judicature  Act 
of  1015  no  notice  of  hearing  of  any  cause  is  necessary.  "When 
ever  the  cause  is  at  issue,  or  when  default  is  entered  or  tiled 
on  or  before  the  fourteenth  day  prior  to  the  first  day  of  any 
term  of  court,  it  is  the  duty  of  the  clerk,  to  place  the  same 
upon  the  calendar  for  the  next  ensuing  term  of  the  court,  in 

6.  C.   L.    1915,    (12489);    Cum-      mins    &    Beecher's    Mich.    Judica- 
,  mins   &   Beecher's    Mich.    Judica-      ture  Act,  §196. 

ture  Act,  §612.  10.     Bauer  v.  Bauer,  177  Midi. 

7.  C.  L.  1915,  (11400) ;  Howell,       169. 

2nd  ed.  §11461.  11.     C.  L.  1915,    (11428);   How- 

8.  C.   C.   Rules,   1916,   No.   26;       ell,  2nd  ed.  §11489. 

Cummins  &  Beecher's  Mich.  Rule          12.    Rosecrance   v.    Rosecrance, 
OK,  p.  bUl.  127  Micn>  322,  86  N.  W.  R.  800. 

9.  C.    L,    1915,    (12034);    Cum- 

,         .' 

331 


§455  HEARING    AND    DECKl'i: 

its  appropriate  place,  and,  unless  sooner  tried,  thereafter  to 
place  the  same  on  the  calendar  for  each  succeeding  term  until 
it  is  disposed  of.  The  causes  are  placed  on  the  calendar  in 
their  proper  classification  in  the  order  in  which  issue  is 
joined  or  default  entered.13  Cases  in  which  issue  is  joined 
or  default  entered  after  the  fourteenth  day  before  the  first 
day  of  the  term  may  be  placed  upon  the  calendar  before  or 
during  the  term  at  the  request  of  the  attorney  of  either  party, 
and  such  causes  will  stand  for  hearing  after  fourteen  days 
from  the  time  that  notice  of  such  cause  having  been  placed  on 
the  calendar  shall  have  been  served  upon  the  opposite  party 
or  his  attorney.1* 

§455.     Cross-Examination  of  Opposite  Party. 

Either  party  to  a  divorce  or  annulment  suit  may  call  the 
other  party  as  a  witness.15  If  the  plaintiff  or  defendant  shall 
call  the  opposite  party  as  a  witness  in  his  or  her  behalf,  such 
party  so  called  as  a  witness  may  be  cross-examined  by  the 
party  calling  him  the  same  as  if  he  or  she,  as  the  case  may 
be,  had  appeared  ;is  a  witness  in  his  or  her  own  behalf,  and 
the  answers  of  such  witness  will  not  interfere  with  the  right 
of  the  other  party  to  controvert  the  testimony  given.16  But 
in  such  case  neither  the  husband  or  wife  is  competent  to  testify 
if  the  charge  made  in  the  bill,  answer,  or  cross-bill,  for  which 
divorce  is  sought,  is  that  of  adultery  of  either  party.17  If  the 
plaintiff  is  subpoenaed  as  a  witness  in  behalf  of  the  defendant 
and  refuses  to  appear,  or,  being  present,  refuses  to  testify  when 
called  upon  to  do  so,  except  where  privilege  exists,  the  bill 
may  be  dismissed,  and  if  the  defendant  has  filed  a  cross-bill  the 
case  may  proceed  to  a  decree  upon  the  cross-bill  and  answer 
thereto,  if  one  has  been  filed.  If  the  defendant  refuses  to 
appear  on  being  personally  served  with  a  subpoena  in  behalf 
of  the  plaintiff,  or,  being  present,  refuses  to  be  sworn  or  to 
testify,  except  where  privileged  from  answering,  the  bill  will 
be  taken  as  confessed.18  But  these  statutory  provisions  do 

13.  C.  L.  1915,    (12573);   Cum-  16.     C.  L.  1915,    (12555);    Cum- 
mins   &    Beecher's    Mich.    Judica-  mins    &    Beecher's    Mich.    Judica- 
ture Act,  §696.  ture  Act,  §678. 

14.  C.  L.  1915,   (12577);   Cum-  17.     C.  L.  1915,    (12555);   Cum- 
mins   &   Beecher's    Mich.    Judica-  mins    &   Beecher's    Mich.    Judica- 
ture Act,  §700.  ture  Act,  §678. 

15.  C.  L.  1915,    (12555);   Cum  18.     C.  L.  1915,    (12560);   Cum- 
mins  &   Beecher's    Mich.    Judica-  mins    &    Beecher's    Mich.    Judica- 
ture Act,  §678.  ture  Act,  §683. 

332 


ro.\iri-:u.i\<;   ATTI:MI.\\CK  AM>  TKSTI  \IO\Y  i:  I ."»('• 

not  authorize  the  court  to  grant  a  decree  of  divorce  or  annul- 
ment if  the  bill  or  cross-bill  is  taken  as  confessed  on  account 
of  the  defendant  refusing  1<>  appear  and  testify,  nor  do  they 
in  any  way  abrogate  or  modify  the  provisons  of  l;iw  with 
reference  to  punishment  of  witnesses  for  contempt  of  court 
for  refusing  to  testify  or  for  refusing  to  appear  when  person- 
ally served  with  subpoena  for  that  purpose. 

§456.    Witnesses — Compelling  Attendance  and  Testimony. 

Witnesses  may  be  compelled  to  attend  the  hearing  or  trial 
by  personal  .service  of  a  subpoena  issued  and  signed  by  the 
clerk  and  under  the  seal  of  the  court.  In  order  to  compel  the 
attendance  of  a  witness  or  party  a  subpoena  must  be  person- 
ally served  on  him  a  reasonable  time  before  he  is  required  to 
appear.  The  length  of  time  will  depend  to  some  extent  upon 
the  distance  the  witness  will  necessarily  have  to  travel  to 
reach  the  place  of  hearing,  and  the  legal  fees  of  the  witness 
must  also  be  paid  or  tendered  at  the  time  of  the  service  unless 
the  witness  waives  such  payment.  The  legal  fees  of  the  wit- 
ness are  one  dollar  per  day  for  attendance  and  ten  cents  per 
mile  for  traveling  to  the  place  of  trial  by  the  usually  traveled 
route,  and  such  traveling  fees  and  one  day's  attendance  must 
be  paid  or  tendered  to  the  witness  at  the  time  of  service. 

The  manner  of  service  is  as  follows: 

First;  the  original  writ,  under  the  seal  of  the  court  or  of 
the  officer  issuing  the  same,  must  be  exhibited  to  the  witness ; 

Second;  a  copy  of  such  writ,  or  a  ticket  containing  its  sub 
stance,  must  be  delivered  to  the  witness  at  the  time  of  ser- 
vice ; 

Third;  the  fees  allowed  by  law  to  ^uch  witness  for  travel- 
ing to  and  returning  from  the  place  where  he  is  required 
to  attend  and  the  foes  allowed  by  law  for  one  day's  attend- 
ance must  be  paid  or  tendered  to  the  witness  at  the  time  of 
service.19 

1'pon  personal  service  and  the  payment  or  tender  of  his 
fees,  the  witness  is  required  to  be  in  attendance  at  the  time 
and  place  stated  in  the  writ  and  remain  in  attendance  until 
legally  excused,  and  he  is  entitled  to  his  /><'>•  tlinn  fees  each 
day  he  is  necessarily  detained  in  attendance.  For  failure  to 
so  attend  and  testify,  without  a  legal  and  reasonable  excuse, 


19.     C.  L.  1915,    (12561);   Cum-      ture  Act,  §684. 
mins    &    Beecher's    Mich.    Judica- 


333 


§457  HEARING  AND  DECREE 

the  witness  will  be  deemed  guilty  of  a  contempt  of  the  court 
out  of  which  the  subpoena  issued,  and  will  also  be  responsi- 
ble to  the  aggrieved  party  for  the  damage  for  the  loss  and 
hindrance  sustained  by  reason  of  such  failure,  and  for  all  other 
damages  sustained  thereby;  and  in  addition  thereto  will  be 
liable  to  the  aggrieved  party  in  the  sum  of  fifty  dollars  as 
additional  damages,  to  be  recovered  in  the  same  action  with 
the  other  damages.20 

§457.    Warrant  for  Apprehension  of  Delinquent  Witness. 

Upon  due  proof  of  personal  service  of  a  subpoena  and  pay- 
i  inent  or  tender  of  the  legal  fees  of  a  witness  and  the  failure 
of  the  witness  to  attend,  the  court  will  issue  its  warrant  to 
the  sheriff  of  the  county  to  bring  such  witness  before  the 
court  to  be  examined.21  The  proof  of  service  of  the  subpoena 
and  of  the  neglect  or  refusal  of  the  witness  to  attend  may 
be  made  ex  parte  by  affidavit,  or,  if  the  court  so  directs,  the 
proof  may  be  made  by  oral  testimony  in  open  court.  If  a  wit- 
ness attending  before  the  court  in  pursuance  of  a  subpoena, 
or  brought  before  the  court  by  warrant  issued  by  the  court 
for  that  purpose,  shall,  without  reasonable  cause  refuse  to  be 
examined  or  to  answer  any  legal  or  pertinent  question,  the 
court,  by  its  warrant,  will  commit  such  witness  to  the  com- 
mon jail  of  the  county  in  which  he  resides,  there  to  remain 
until  he  submits  to  be  examined,  or  to  answer  such  legal  and 
pertinent  questions  as  shall  be  put  to  him,  or  until  he  shall 
be  discharged  according  to  law.22 

A  peculiar  feature  of  this  section  of  the  statute  is  that  in 
case  of  the  contumacious  refusal  of  a  witness  to  appear  or 
testify,  the  court  is  required  to  commit  such  witness  to  *the 
jail  of  the  county  in  which  the  witness  resides,  even  though 
such  county  may  not  be  within  the  territorial  jurisdiction 
of  the  court  which  issues  the  warrant  of  commitment.  It 
frequently  happens  that  witnesses  are  called  before  the 
courts  who  are  residents  of  another  state,  or  of  a  county 
other  than  those  composing  the  territorial  jurisdiction  of  the 
court.  In  such  a  case  it  may  be  doubtful  whether  a  warrant 

20.  C.    L.    1915,    (12561;    Cum-      ture  Act,  §686. 

mins    &    Beecher's    Mich    Judica-  22.     C.  L.  1915,    (12564) ;   Cum- 

ture  Act,  §684.  mins    &    Beecher's    Mich    Judica- 

21.  C.  L.  1915,    (12563) ;    Cum-  ture  Act,    §687. 
mins   &    Beecher's    Mich.    Judica 

334 


<-OMIM:TI:\CY  or  \\  ITNKSS  §459 

nt  commitment  could  be  executed  in  the  foreign  state  or 
county. 

Such  w.'irriii I  of  commitment  must  specify  particularly  the 
cause-  of  such  commiiment  and,  if  the  commitment  is  for  re- 
fusing to  answer  any  questum.  such  question  must  he  stated  in 
the  warrant.23 

A  warrant  t<>  apprehend  a  witness  who  refuses  to  attend 
the  court  in  ohedience  to  a  subpoena  duly  served  must  he  di- 
rected to  the  sheriff  of  the  county  where  such  witness  may  be, 
and  must  be  executed  by  him  in  the  same  manner  as  other 
process  issued  by  courts  of  record. 

§458.     Mode  of  Administering  Oath  to  Witnesses. 

The  usual  mode  of  administering  an  oath  to  a  witness 
practiced  in  this  state  is  by  the  person  who  swears  hiding  up 
the  right  hand.  The  statute  requires  this  method  to  be  ob- 
served in  all  cases,  except  where  such  person  is  conscientiously 
opposed  to  taking  an  oath.25  In  such  case  a  witness  instead 
of  swearing,  may  be  permitted  solemnly  and  sincerely  to 
Affirm,  under  the  pains  and  penalties  of  perjury.-15 

§459.     Competency  of  Witness — Religious  Opinions. 

The  statute  provides  that  "no  person  shall  be  deemed  in- 
competent as  a  witness  in  any  court,  matter,  or  proceeding, 
on  account  of  his  opinions  on  the  subject  of  religion;  nor 
shall  any  witness  be  questioned  in  relation  to  his  opinions 
thereon,  either  before  or  after  he  shall  be  sworn."27  The  Con- 
stitution also  provides  that  no  person  shall  be  rendered  in- 
competent to  be  a  witness  on  account  of  his  opinions  on  mat- 
ters of  religious  belief.28 

It  has  been  held  that  this  section  of  the  constitution  refers 
only  to  the  competency  and  not  to  the  credibility  of  the  wit- 
nesses. 29  But  the  statute  goes  further  than  the  constitu- 

23.  C.  L.  1915,    (12565);   Cum-      ture  Act,    §692. 

mins    &   Beecher's    Mich.    Judica-  27.     C.  L.  1915,    (12570) ;   Cum- 

ture  Act  §688.  mins    &    Beecher's    Mich.    Judica- 

24.  C.   L.  1915,    (12566) ;   Cum-  ture  Act,  §693.  This  section  of  the 
mins    &   Beecher's    Mich.    Judica-  judicature   act   makes   no   change 
ture  Act  §689.  of  the   former   statute,   C.   L.    '97 

25.  C.  L.  1915,    (12568V;   dum-  (10207);   Howell,  2nd  ed.  §12851. 
mins   &    Beecher's    Mich.    Judica-  28.     Constitution,    1908,   Art    2, 
ture  Act,  §691.  Sec.  17. 

26.  C.  L.  1915,    (12569);   Cum-  29.     People  v.  Jenness,  5  Mich, 
mins    &   Beecher's   Mich.    Judica-  319. 

235 


§400  HEARING  AND  DECREE 

tion,  and  forbids  questioning  a  witness  in  relation  to  his 
opinion  on  the  subject  of  religion  or  his  religious  belief,  either 
before  or  after  he  is  sworn.30  The  original  common  law  rule 
that  in  order  to  be  a  competent  witness  a  person  must  be- 
lieve in  God  and  in  a  state  of  future  rewards  and  punish- 
ments has  been  modified  so  as  to  admit  the  testimony  of  per- 
sons who  believe  in  the  existence  of  a  supreme  being,  although 
not  in  rewards  and  punishments  after  death ;  and  in  a  num- 
ber of  jurisdictions  the  common  law  rule  is  entirely  abro- 
gated by  constitutional  or  statutory  provisions,  under  which 
religious  belief,  or  the  lack  of  it,  has  no  bearing  whatever  on 
the  competency  of  a  witness.  In  some  jurisdictions  the  ques- 
tion of  religious  belief  does  not  affect  the  competency  of  the 
witness,  but  it  may  be  enquired  into  for  the  purpose  of  affect- 
ing the  credibility  of  his  testimony. 

In  th6se  jurisdictions  where  the  common  law  rule  is  en- 
tirely abrogated  by  constitutional  provision  or  legislative 
enactment  it  is  not  competent  to  examine  a  witness  as  to  his 
religious  belief,  either  before  he  is  sworn  or  afterwards,  for 
the  purpose  of  determining  his  competency,  or  to  affect  the 
credibility  of  his  testimony.31 

§460.     Competency   of   Witness: — Appreciation   of   Nature   and 

Obligation  of  Oath. 

In  order  to  be  competent  as  a  witness,  a  person  must  have 
sufficient  intelligence  to  understand  and  appreciate  th£  obli- 
gation of  the  oath  lie  takes.  The  purpose  of  the  law  being 

30.  Sibley  v.  Morse,  146  Mich.  Kentucky.      White    v.    Com.    96 
463,  109  N.  W.  R.  858.  Ky.  180,  28  S.  W.  R.  340;  Bush  v. 

31.  California.     Fuller    v.    Ful-  Com.,  80  Ky.  244,  3  Ky.  L.  R.  740. 
ler,  17  Cal.  605.  Louisiana.      State   v.    Williams, 

Florida.     Clinton    v.    State,    53  111  La.  179,  35  So.  R.  505. 

Fla.  98,  43  So.  R.  312,  12  Ann.  Gas.  Massachusetts.     Com.  v.  Burke, 

150  and  note.  16  Gray,  63. 

Georgia.      Donkel    v.    Conn,    44  Michigan.    People  v.  Jenness,  5 

Ga.  266.  Mich.    305;    Sibley   v.   Morse,    146 

Illinois.    Hroneck  v.  People,  134  Mich.  463,  109  N.  W.  R.  858. 

111.  139,  24  N.   E.  R.  961,  23  Am.  Missouri.      Londoner      v.      Lic- 

St.  R.  652,  8  L.  R.  A.  837;  Ewing  thenheim,  11   Mo.  App.  385. 

v.  Bailey,  36  111.  App.  191.  New  Jersey.     State  v.  Powers, 

Indiana.      Snyder  v.  Nations,   5  51  N.  J.  L..432,  17  Atl.  R.  969. 

Blachf.  295.  Texas.     Colter  v.  State,  37  Tex. 

Iowa.     State  v.  King,  117  Iowa,  Cr.  284,  39  S.  W.  R.  576;  Murphy 

484,  91  N.  W.  R.  768.  v.  State,  36  Tex.  Cr.  24,  35  S.  W. 

Kansas.     Dickinson  v.  Beal,  10  R.  174. 
Kan.  App.  233,  62  Pa.  R.  724. 

336 


AS  \YITM:SSI:S 

to  lay  hold  on  the  conscience  of  the  witness  i»y  this  religious 
solemnity,  it  is  obvious  that  persons  incapable  of  compre- 
hending the  nature  and  obligation  of  an  oath  ought  not  1<>  l»e 
admitted  ;is  wil nesses.  In  their  case  the  repetition  of  the 
"words  of  the  oath  would  be  but  an  unmeaning  formality.  It 
makes  no  difference  from  what  cause  the  defect  of  under- 
standing may  have  arisen;  nor  whether  it  be  temporary  and 
curable  or  permanent;  whether  the  party  be  hopelessly  an 
idiot  or  maniac,  or  only  occasionally  insane,  as  a  lunatic; 
or  be  intoxicated,  or  whether  the  defect  arises  from  mere 
immaturity  of  intellect,  as  in  the  case  of  children.  While 
the  deficiency  of  understanding  exists,  be  the  cause  of  what 
nature  soever,  the  person  is  not  admissible  to  be  sworn  as  a 
witness.32 

§461.    Children  as  Witnesses. 

The  most  frequent  occasion  to  apply  the  foregoing  rule  is 
in  the  case  of  young  children  who  are  called  as  witnesses.33 
It  is  universally  held  by  th6  courts  of  this  and  other  states 
that  the  fact  that  a  child  called  as  a  witness  is  under  the  age 
of  seven  years  does  not  create  an  absolute  disability  to  testi: 
fy.34 

The  authorities  all  agree  that  a  child  is  not  competent  to 
testify  if  it  is  not  capable  of  appreciating  the  obligation  of 
an  oath,  if  he  takes  an  oath,  or  of  his  affirmation  if  thai  is 
substituted.  This  is  upon  the  ground  that  a  witness  must  be 
under  some  pressure  arising  out  of  the  solemnity  of  the  oc- 
casion beyond  the  ordinary  obligation  of  telling  the  truth.3'1 
But  it  has  been  held  that  it  is  not  necessary  that  the  child 
should  understand  that  the  obligation  to  tell  the  truth  on  the 
witness  stand  is  any  greater  than  at  other  places.36  It  a]> 

32.  1    Greenleaf    on    Evidence,  v.  Olson,   130  la.   353,  106  N.  W. 
15th  ed.,  Sec.  365,  Page  502.    The  R.  758;  Kilburn  v.  Mullen,  22  la. 
question    of    the    competency    of  498;    Lee   v.   R.   R.   Co.,   76   Kan 
the  witness  is  for  the  trial  judge  402,  73  Pa.  R.  110,  63  L.  R.  A.  271. 
to  decide,  and  he  may  conduct  the          34.    McGuire  v.  People,  44  Mich, 
examination  to  determine  the  de-  286,  6  N.  W.  R.  669. 

gree  of  intelligence  possessed  by          85.    1   Greenleaf  Ev.,   15th  ed., 

the  witness  as  he  sees  fit;  Canna-  Sec.    367;    1  Phil  Ev.,  Ch.   2   and 

day  v.  Lynch,  27  Minn.  435,  8  N.  notes:  Hughes  v.  Detroit,  G.  H.  & 

W.  R.  164.  M.  R.  R.  Co.,  65  Mich.  14,  31  N.  W. 

33.  Hughes  v.  Detroit,  G.  H.  &  R.  603. 

M.    R.    R.    Co.,    65    Mich.    10,    31  36.     State  v.  Meyer,  135  Ta.  507, 

N.  W.  R.  603;  Davis  v.  State,  31  113  N.  W.  R.  322,  124  Am.  St.  R. 
Neb.  247.  47  N.  W.  R.  854;  Olson  291,  14  Ann.  Cas.  1  and  note. 

337 


§462  HEARING  AND  DECREE 

pears  to  be  sufficient  to  qualify  the  child  that  he  understands 
the  difference  between  truth  and  falsehood,  and  that  it  is 
his  duty  to  tell  the  truth,37  and  that  he  will  be  punished  if 
he  testifies  falsely.38  A  child  who  knows  that  he  will  be  pun- 
ished on  earth  if  he  testifies  falsely  is  competent,  although 
he  knows  nothing  of  punishment  after  death.39  The  child 
need  not  know  how,  or  by  whom  he  will  be  punished.40  And 
the  fact  that  the  child  is  too  young  to  be  prosecuted  for  per- 
jury does  not  render  him  incompetent.41 

§462.     Conviction  of  Crime. 

The  common  law  rule  is  that  a  person  is  incompetent  as 
a  witness  if  he  has  been  convicted  of  an  infamous  crime,4- 
such  as  treason,  felony  or  any  of  the  crimen  falsi;  but  a  mere 
conviction  of  crime  does  not  render  the  offender  incompetent 
if  he  has  not  thereby  been  rendered  infamous.  The  common 
law  rule  has  been  declared  by  legislative  enactment  in  some 
of  the  states,  and  in  others  it  is  abolished  so  far  as  the  ques- 
tion of  competency  is  concerned,  but  a  conviction  of  c^rime 
may  be  shown  as  bearing  on  the  credibility  of  the  testimony 
given  by  the  witness.  In,  Michigan  the  statute  provides  that 
"no  person  shall  be  excluded  from  giving  evidence  in  any 
matter,  .civil  or  criminal,  by  reason  of  crime,  but  conviction 
of  crime  may  be  shown,  for  the  purpose  of  drawing  in  ques- 
tion the  credibility  of  such  witness."44  This  statute  does  not 
abrogate  the  common  law  rule  entirely  as,  to  the  effect  of 

37.  State     v.     Washington,     44       298,  86  S.  W.  R.  527,  117  Am.  St. 
La.    Ann.    1602,    22    So.    R.    841;       R.  590. 

Clark  v.  Finnegan,  127  Iowa,  644,  41.     Johnson    v.   State,    61    Ga. 

103  N.  W.  R.  970.  35. 

38.  Sokel    v.    People,    212    111.  42.     Taylor    v.     State,    62    Ala. 
238,   72    N.   E.    R.   382;    Bright  V  164; 'Werner    v.    State,     44     Ark. 
Com.    120,   Ky.    298,   86    S.   W.    R.  122;    State  v.  Clark,  60  Kan.  450, 
527,  27  Ky.  L.  R.  677,  117  A.  M.  56   Pac.  R.    767;    People  v.  Whip- 
St.   R.    590;    Agneau   v.   Brooklyn  pie,  9  Cow.   (N.  Y.)   707;  U.  S.  v. 
City  R.  R.  Co.,  5  N.  Y.  Supp.  756,  Barefield,  23 'Fed.  R.  136. 
affirmed  in  117  N.  Y.  651,  22  N.  E.  43.     Holler  v.  Firth,  3  N.  J.  L. 
R.   1132;    Clark    v.    State,,    (Tex.  723;  Welsh  v.  State,  3  Tex.  App. 
Crim.  1902),  66  S.  W.  R.  1104.  114;  U.  S.  v.  Brockins,  24  Fed.  R. 

39.  Sawado     v.     State,      (Tex.  460,    3   Wash.    99,   where    no     in- 
Crim.  App.  1902),  61  S-.  W.  R.  142;  famous  punishment  was  inflicted, 
Rcroggins    v.    State,     (Tex.    Crim.  though  it  might  have  been. 

App.     1902),    51    S.     W.    R.  232,  44.     C.  L.  1915,  (12560) ;  Howell, 

Contra   Jones   v.    State,    145  Ala.  2nd  ed.   §12854;    People    v.    Hoff- 

51,  40  So.  R.  947.  man,  154  Mich.  145,  117  N.  W.  R. 

40.  Bright    v.    Com.,     120  Ky.  568. 

338 


AHMissii'.iUTY   nr  TESTIMONY  {=  Mi:'. 

the  conviction  of  ;ui  infamous  crime  on  ;i  witness,  1ml  still  al- 
lo\\>  such  coin  in  ion  to  In-  shown  ;is  a  distinct  fact,  as  bear- 
in  •;  on  the  credit  to  be  given  to  his  testimony  by  tin-  court 
or  jury.45 

The  credit  of  a  witness,  however,  cannot  be  impeached  or 
assailed  by  the  direct  testimony  of  another  witness  to  any 
criminal  act  committed  by  the  witness,  or  to  any  charge  of 
criminality,  unless  lie  has  actually  been  adjudged  guilty,  and 
this  can  be  shown  only  by  a  record  and  judgment  of  comic 
tion.40  The  general  rules  as  to  the'  admissibility  of  testimony 
in  divorce  and  annulment  cases  are  the  same  as  in  any  other 
( -asc  on  the  equity  side  of  the  court. 

§463.     Admissibility  of  Testimony. 

In  taking  the  testimony  in  divorce  cases,  the  general  rules 
of  law  are  applicable  as  to  competency,  relevancy  and  ma- 
teriality of  testimony  offered.  Prior  to  the  enactment  of  the 
.Judicature  Act  of  1915,  the  court  on  the  hearing  of  chancery 
cases  in  open  court  was  ordinarily  required  to  receive  all 
testimony  offered  unless  it  was  clearly  and-  without  question 
incompetent,  or  was  offered  by  a  witness  whom  the  law  de- 
clared to  be  incompetent  to  testify  in  the  particular  case  or 
on  a  particular  subject.  This  rule  was  followed  on  the  theory 
that  inasmuch  as  the  Supreme  Court  on  appeal  was  required 
to  hear  and  determine  the  case  upon  the  testimony  taken  in 
the  lower  court,  it  became  necessary  to  have  all  of  the  testi 
mony  offered  taken  and  returned  to  the  appellate  court, 
where  such  as  was  found  to  be  inadmissible  could  be  rejected 
and  a  tinal  decree  entered  without  sending  the  case  back  for 
a  new  trial  or  hearing.  The  commissioners  appointed  to  pre 
pare  and  report  bills  for  revision  and  consolidation  of  the 
statutes,  whose  careful  and  painstaking  labor  and  research 
resulted  in  the  passage  of  the  Judicature  Act  of  1915,  in  their 
report  to  the  governor,  make  use  of  the  following  language 
on  this  subject:  "In  the  ^trial  of  chancery  cases  much  time 
is  taken  up  by  the  introduction  of  wholly  immaterial  and  in- 
competent testimony.  The  chancery  record  is  often  made  the 
dumping  ground  of  things  introduced  purely  to  gratify  spite 

45.  People  v.  Hall,  48  Mich.  Mich.  21,  26  N.  W.  R.  795;  Dris- 

490,  12  N.  W.  R.  665;  Helwig  v.  coll  v.  People,  47  Mich.  416,  11  X 

Lascowski,  82  Mich.  619,  46  N.  W.  W.  R.  221;  Smith  v.  Brown,  2 

R.  1033.  Mich.  162;  Dickinson  v.  Dustin, 

4f,.     People    v.    Maunausau.    60  21  Mich.  561. 

339 


HEARING    AND 

or  malice,  or  with  the  deliberate  intent  of  prejudicing  the 
court  by  matter  known  to  be  improper."  While  this  state- 
ment is  not  very  complimentary  to  the  profession,  candor 
compels  the  admission  that  it  contains  a  large  measure  of 
truth. 

The  only  reason  which  can  be  offered,  or  which  ever  has 
been  offered,  for  receiving  every  thing  offered  in  chancery 
hearings,  is  that  in  case  of  an  appeal,  if  the  Supreme  Court 
should  hold  that  testimony  which  has  been  rejected  should 
have  been  received,  it  could  not  properly  make  a  just  and 
final  disposition  of  the  case  without  having  such  testimony 
before  it. 

§464.     Court  to  Rule  on  All  Objections. 

The  Judicature  Act  of  1915  made  a  radical  change  in  the 
matter  of  taking  testimony  in  chancery  cases.  It  provides 
"that  in  all  chancery  cases  the  court  must  rule  upon  all  ob- 
jections to  the  competency,  relevancy,  or  materiality  of  testi- 
mony or  evidence  offered,  the  same  as  in  suits  at  law."  If 
the  court  is  of  the  opinion  that  testimony  offered  ought  not 
to  be  received,  it  may  be  excluded.  The  rights  of  the  party 
offering  such  testimony  are  fully  protected  on  appeal  by  a 
further  provision  that  if  the  testimony  offered  and  excluded  is 
brief,  the  court,  in  its  discretion  may  permit  it  to  be  taken 
down  by  the  stenographer,  separate  from  that  received  i^i  the 
case;  and,  in  case  of  an  appeal,  such  excluded  testimony 
may  be  returned  to  the  appellate  court  under  the  certificate 
of  the  trial  court.  If  such  excluded  testimony  is  not  permit- 
ted by  the  trial  court  to  be  taken  down  by  the  stenographer, 
and  on  appeal  the  Supreme  Court  shall  be  of  the  opinion  that 
such  testimony  is  competent  and  has  a  material  bearing  on 
the  issues  involved,  it  may  order  the  same  to  be  taken  by 
deposition  or  under  a  reference,  and  returned  to  that  court.47 

These  provisions  seem  to  do  away  with  any  objections  which 
can  be  made  to  the  change  referred  to,  made  by  the  Judicature 
Act,  and  to  prevent  such  abuses  as  under  the  former  practice 
sometimes  occurred.  Of  course,  if  the  Supreme  Court,  upon 
examination  of  the  record,  should  find  it  necessary  to  direct 
a  reference  or  to  order  such  -testimony  to  be  taken  by  depo- 
sition, the  final  disposition  of  the  case  may  be  delayed  for  a 
short  time,  but  that  would  be  a  trifling  matter  compared  with 

47.     C.  L.  1915,    (12493) ;   Cum-      ture  Act,  §616. 
mins   &   Beecher's    Mich.    Judica- 

340 


I'KKi'AKixi;   AM»  SI:TTI.IN<;   i>i:ri;i:r.  i-HiC. 

going  through  ;i  long  record  of  incompetent  and  iiiiin:i terial 
testimony  and  separat  ing  the  materia  1  from  the  immaterial 
;ill(l  incompetent.  Oil  the  whole  the  chaiige  seems  to  lie  ;i 

wise  one.  Of  course  it  is  a  radical  departure  from  a  well 
recognized  ami  long  established  practice,  but  it  is  a  salutary 
preventive  of  an  evil  of  just  as  long  existence. 

§465.     Argument  of  Divorce  Cases. 

When  the  proofs  are  closed  on  the  hearing  of  a  divorce  or 
annulment  case  oral  arguments  may  be  made  upon  the  <|iies 
tions  of  law  and  fact  involved,  by  counsel  for  the  respective 
parties.  Upon  the  issues  of  fact  raised  by  the  bill  and  an- 
swer, the  attorney  for  the  plaintiff  has  the  right  to  make  the 
opening  and  closing  argument.  If  a  cross-bill  has  been  filed 
by  the  defendant  and  answered  by  the  plaintiff,  the  issues 
so  raised  are  argued  at  the  same  time,  and  may  be  presented 
to  Ilie  court  in  connection  with  those  issues  which  are  raised 
by  the  original  bill  and  the  answer  thereto.  If  no  testimony 
has  been  offered  in  support  of  the  allegations  of  the  cross- 
bill it  will  be  treated  as  abandoned  by  the  defendant,  and  the 
argument  confined  to  the  questions  raised  by  the  original  bill 
and  answer,  concerning  which  testimony  has  been  given.  No 
more  than  two  hours  is  allowed  either  side  for  argument  un- 
less otherwise  directed  by  the  court,  and  the  court  in  its  dis- 
cretion may  limit  the  time  to  less  than  two  hours,  but  counsel 
may  have  at  least  one-half  hour  on  each  side  if  they  so  de- 
sire.48 

§466.    Decree : — Preparing  and  Settling. 

After  the  arguments  of  counsel  are  concluded  the  cause  is 
submitted  to  the  court  for  its  decision.  When  the  decision 
of  the  court  is  announced,  either  orally  in  open  court  or  by 
written  findings  filed  with  the  clerk,  a  formal  decree  should 
be  prepared  by  counsel  for  settlement  and  signature  by  the 
judge  who  heard  the  cause.  Counsel  for  the  party  in  whose 
favor  the  decision  is  made  should  prepare  the  decree  in  ac- 
cordance with  the  findings  of  the  court,  and  should  serve  a 
copy  on  counsel  for  the  opposite  party,  together  with  a  notice 
of  the  time  when,  and  the  place  where,  the  same  will  be  pre- 
sented to  the  judge  for  settlement  and  signature.  At  least 

48.     C.   C.   Rules,   1916,   No.   42,      Mich.  Rule  Book,  p.  620. 
Sec.    2;     Cummins    &    Beecher's 

341 


§467  HEARING    AND    DECREE 

four  days  notice  should  be  given  of  the  time  and  place  of 
settling  the  decree.  Amendments  to  the  proposed  decree  may 
be  prepared  and  submitted  to  the  trial  judge  for  allowance, 
and  when  the  terms  of  the  decree  are  settled  it  should  be 
neatly  and  carefully  engrossed,  signed  by  the  judge,  and  filed 
with  the  clerk  of  the  court. 

§467.    Application  for  Rehearing. 

An  application  for  a  rehearing  may  be  had  in  divorce  ac- 
tions under  the  same  conditions  and  terms  as  in  other  equit- 
able actions,  on  proper  cause  shown.  No  application  for  a 
rehearing  can  be  heard  unless  made  within  four  months  from 
the  time  of  the  entry  of  the  final  decree.  The  application  may 
be  made  by  special  motion  or  petition,  and  the  special  matter 
or  cause  on  which  the  rehearing  is  applied  for  and  the  parti- 
cular points  in  which  the  decree  or  order  is  alleged  to  be 
erroneous  must  be  fully  set  forth  in  the  motion  or  petition. 
If  the  matters  of  fact  stated  in  the  motion  or  petition  do 
not  appear  from  the  records  of  the  court,  they  must  be  veri- 
fied by  the  oath  of  the  party  or  some  other  person  having  per- 
sonal knowledge  of  such  facts.49  Clerical  mistakes  in  a  de- 
cree or  decretal  order,  or  errors  arising  from  any  accidental 
slip  or  omission,  may  be  corrected  at  any  time  within  three 
months  after  such  decree  is  entered,  by  the  order  of  the  court 
or  a  judge  thereof  without  the  form  op  expense  of  a  rehear- 
ing.50 If  a  rehearing  is  granted  the  petitioner  will  lose  the 
benefit  of  the  order  granting  it  unless  within  ten  days  after 
such  order  is  entered  he  shall  deposit  with  the  clerk  the  sum 
of  fifty  dollars,  or  such  additional  reasonable  sum  as  the 
court  may  from  time  to  time  order,  to  answer  the  costs  and 
damages  of  the  adverse  party  if  the  decree  or  order  shall  not 
be  materially  changed.51 

The  order  granting  the  rehearing  should  state  the  amount, 
not  less  than  fifty  dollars,  which  the  petitioner  is  required' 
to  deposit  with  the  clerk,  and  the  court  thereafter  may  order 
such  additional,  amount  to  be  deposited  fpr  the  same  purpose 
as  may  be  found  to  be  necessary.    The  first  deposit  must  not 

49.  C.  C.  Rules,   1916,   No.   56,      Mich.  Rule  Book,  p.  640. 

Sec.    1-2;    Cummins    &    Beechers  51.     C.  C.   Rules,   1916,   No.    56, 

Mich.  Rule  Book, N  p.  640.  Sec.     4;     Cummins    &    Beecher's 

50.  C.   C.^  Rules,   1916,  No.    56,  Mich.   Rule  Book,   p.    640. 
Sec.     3;     Cummins    &    Beecher's 

342 


i. \II:\T  HI-  i>i:ri:i:i: 

!»<•  less  than  lifly  dollars.  After  thai  the  additional  amounts 
required  arc  in  tin-  discretion  of  the  court.  These  provisions 
of  Kule  No.  Hi;  of  the  new  rules  promulgated  by  the  Supreme 
Court  very  materially  change  Ihe  ]»ractice  in  relation  to  re- 
hearings  and  ]>ills  of  review.  Imt  the  pi-ineiples  laid  down 
in  former  decisions  still  apply. 

If  the  tads  upon  which  the  petitioner  bases  his  right  to  a 
rehearing  were  known  to  him  or  l»y  the  exercise  of  reasonable 
diligence  might  have  been  ascertained  at  the  time  of  the  first 
hearing,  a  rehearing  will  be  denied.52 

An  application  for  a  rehearing  based  upon  facts  which 
already  appear  on  the  record  and  that  would  not.  materially 
alter  or  add  to  the  case  made  on  the  first  hearing1  will  be 
denied.'"  A  rehearing  will  not  be  granted  on  the  ground  of 
newly  discovered  evidence  where  the  statement  of  the  new 
evidence  is  vague  and  indicates  nothing  more  than  cumula- 
tive testimony  upon  a  subject  on  which  several  witnesses  were 
examined  and  testified  on  the  first  hearing." 

§468.     Enrollment  of  Decree. 

After  the  expiration  of  twenty  days  from  the  time  the  final 
decree  is  entered,  such  decree  should  be  enrolled  by  the  clerk 
of  the  court,  if  at  that  time  no  appeal  has  been  claimed  and 
no  petition  for  a  rehearing  presented.  This  is  done  by  at- 
taching together  the  bill,  pleadings,  and  such  other  papers 
in  the  cause  as  may  have  been  from  time  to  time  filed  there- 
in, in  accordance  with  the  rules  and  practice  of  the  court, 
together  with  the  taxed  bill  of  costs,  if  any.  and  the  final 
decree  or  decretal  order  signed  by  the  judge  and  counter- 
signed by  the  clerk." 

Before  the  passage  of  the  Judicature  Act,  the  clerk  was 
not  required  to  enroll  the  decree  until  requested  to  d^>  so  by 
one  of  the  parties,  but  the  statute  now  requires  such  enroll- 
ment without  such  request  after  the  expiration  of  twenty 
days,  if  no  appeal  has  been  claimed  and  no  application  for  a 
rehearing  made.  In  preparing  papers  for  tiling  in  chancery 
cases,  care  should  be  taken  to  leave  a  top  margin  wide  enough 

52.  Sherwood     v.     Bank,     104      485;     Detroit.  Savings     Bank     v. 
Mich.  65,  62  N.  W.  R.  294;  Ryer-      Truesdail,  38  Mich.  430. 

son   v.  Eldred,  18  Mich.  390.  55.     C.  L.  1915.    (12805);   Cum- 

53.  Taylor     v.     Boardman,    24  mins    &    Beecher's    Mich    Judica- 
Mich.  287.  ture  Act,  §928. 

54.  Case     v.     Case,     26     Mich. 

343 


§400  HEARING    AND    DECREE 

so  that  the  writing  will  not  be  obscured  by  enrollment.  When 
the  decree  has  been  enrolled  the  clerk  is  required  to  annex 
thereto  his  certificate,  under  the  seal  of  the  court,  certifying 
according  to  the  fact  the  time  when  such  .papers  were  so 
attached  for  the  purpose  of  enrollment,  and  the  name  or 
names  of  the  parties  at  whose  instance  the  same  was  done. 
Such  decree  and  papers  so  enrolled  are  then  filed  by  the  clerk 
and  remain  a  record  in  his  office.56  If  a  decree  affects  or  de- 
termines the  title  to  real  estate,  a  copy  thereof  duly  certified 
by  the  clerk  of  the  court  in  which  the  same  is  entered,  under 
the  seal  of  the  court,  may  be  received  and  recorded  in  the 
office  of  the  register  of  deeds  of  the  proper  county  after  entry 
and  enrollment.  Such  copy,  or  the  record  thereof,  will  have 
the  same  force  as  evidence  of  the  facts  therein  contained  as 
th&  original  decree.  If  such  decree  directs  the  execution  of 
a  conveyance  or  other  instrument  affecting  the  title  to  real 
estate,  the  record  of  such  enrolled  certified  copy  of  the  decree 
will  have  the  same  effect  as  the  execution  of  such  conveyance 
or  other  instrument  would  have  if  duly  executed  in  pursuance 
of  said  order  or  decree.57  In  all  divorce  cases  where  the  final 
decree  directs  one  of  the  parties  to  convey  real  estate  to  the 
other,  or  declares  a  lien  on  real  estate  to  secure  the  payment 
of  a  sum  of  money,  the  decree  should  be  properly  enrolled 
and  recorded  in  the  office  of  the  register  of  deeds  of  the  county 
in  which  the  land  is  situated. 

§469.    Discharge  and  Satisfaction  of  Decree. 

If  the  decree  in  a  divorce  case  goes  no  farther  than  to  dis- 
solve the  marriage,  manifestly  no  satisfaction  or  discharge  of 
such  decree  is  necessary  to  be  filed  or  entered. 

If,  however,  the  decree  provides  for  the  payment  of  a  sum 
of  money  as  costs  and  expenses  of  the  suit,  or  as  alimony,  or 
the  performance  of  any  other  specified  act,  when  full  per- 
formance has  been  made  and  had  a  satisfaction  and  discharge 
of  the  decree  should  be  entered. 

Such  discharge  and  satisfaction  is  accomplished  by  the 
party  in  favor  of  whom  the  decree  was  entered  signing  a  writ- 
ten acknowledgment  that  he  has  been  fully  paid  the  amount 

56.     C.  L.   1915,    (12806);    Cum-  57.     C.  L.  1916,    (12807);    Cum- 

mins &  Beecher's  Mich.  Judica-  mins  &  Beecher's  Mich.  Judica- 
ture Act,  §929.  ture  Act,  §930. 

344 


|470 

of  ;ill  money  directed  by  said  decree  to  l>e  paid,  and  lias  re- 
ceived full  performance  and  satisfaction  of  all  things  di- 
rected by  said  decree  to  be  done'or  performed.  This  acknowl- 
edgment must  be  signed,  acknowledged  and  certified  to  be- 
fi'i-r  and  by  some  officer  authorized  to  take  acknowledgments, 
a n.l  tiled  in  the  office  of  the  clerk  of  the  court.  Upon  the  fil- 
ing of  such  acknowledgment  the  clerk  is  required  to  enter  in 
ihc  docket  of*  such  decree  a  note  of  the  satisfaction  and  dis- 
charge thereof.58  The  court  also  has  power  to  order  a  decree 
to  be  discharged  upon  a  hearing  of  the  parties  and  upon  satis- 
factory evidence  that  the  same  has  been  fully  paid  or  satis- 
fied.50 " 

II  ihe  decree  has  been  fully  pai/1  and  all  of  its  conditions 
performed  and  complied  with,  and  the  party  who  has  re- 
ceived such  payment  or  performance  refuses  to  sign  and 
acknowledge  a  discharge  of  the  same,  or  for  any  reason  such 
discharge  and  satisfaction  cannot  be  procured,  application 
should  .be  made  to  the  Court  by  special  motion  or  petition 
for  an  order  of  discharge  and  satisfaction  thereof. 

§470.     Enforcement  of  Decree. 

Performance  of  or  obedience  to  any  final  derive  of  a  court 
of  chancery  may  be  enforced  by  execution  against  the  body 
of  the  party  against  whom  such  decree  shall  have  been  made, 
or  by  execution  against  the  goods  and  chattels  of  such  party,80 
and.  in  default  thereof,  his  lands  and  tenements.  The  decree 
must  he  enrolled  before  anv  execution  can  issue  against  the 
body.  01-  against  the  lands  and  tenements  or  goods  and  chat- 
tels of  the  party,  and  such  enrollment  must  include  all  of  the 
papers  tiled  in  the  case.  If  the  decree  authorizes  the  sale 
of  real  estate,  notice  of  such  sale  may  be  given*  in  advance  of 
such  enrollment,  but  no  conveyance  on  such  sale  can  be  ex- 
ec-nted  by  a  commissioner  or  other  officer  until  such  enroll- 
ment is  had.61 

58.  C.  L.  1915,   (12808);   Cum-      mins   &   Beecher's   Mich.   Judica- 
in ins    &    Beecher's    Mich.    Judica        ture   Act    §1088. 

ture  Act,  §931.  61.     C.  C.  Rules,  1916,  No.  55. 

59.  C.  L.  1915,   (12809) ;   Cum-  Cummins  &  Beecher's  Mich  Rule 
mins    &    Beecher's   Mich.    Judica-  Book,  p.  639.    C.  L.  1915,  (12965) ; 
ture  Act,  §932.  Cummins  &  Beecher's  Mich.  Jucli- 

60.  C.   L.   1915,    (12965);   Cum-  cature  Act.    §1088. 


345 


CHAPTER  XL. 

POWERS  AND  DUTIES  OP  PROSECUTING  ATTORNEYS 
IN  DIVORCE  CASES. 

§471.  Reason  for  Public  Representation. 

§472.  •  General  Legislation. 

§473.  Michigan  Statutory  Provisions. 

§474.  Duty  on  being  Served  with  Summons. 

§475.  Subjects  of  Investigation. 

§476.  Prosecutor  not  Disqualified  to  Act  for  Either  Party. 

§477.  Compensation  for  Services. 

§471.    Reason  for  Public  Representation. 

All  divorce  and  annulment  cases  are  of  a  quasi  public 
character,  in  which  it  has  generally  come  to  be  understood 
that  public  policy  requires  the  adoption  of  some  means  for 
th«  protection  of  the  public  against  such  evils  as  would  be 
likely  to  arise  by  an  ill-advised  dissolution  of  the  marriage 
tie.  Especially  is  this  true  where  it  is  sought  to  dissolve  a 
marriage  which  has  resulted  in  bringing  children  into  ex- 
istence, who,  in  the  tender  years  of  their  lives,  are  in  need 
of  such  care  and  protection  as  can  be  afforded  only  in  a  well- 
ordered  home  of  their  parents. 

But  the  necessity  for  representation  of  the  public  interests 
in  such  cases  is  not  by  any  means  confined  to  the  interests 
and  welfare  of  children.  A  wise  public  policy  forbids  di- 
vorces procured  by  collusion  between  the  parties.  The  mar- 
riage relation,  which  lies  at  the  very  foundation  of  civilized 
society,  should  not  be  lightly  regarded  nor  carelessly  dealt 
with.  * 

Notwithstanding  some  modern  legislation  and  ancient  and 
modern  decisions  declaring  marriage  to  be  a  civil  contract 
between  the  parties,  it  appears  to  be  universally  recognized 
that  it  is  also  in  the  nature  of  a  contract  between  the  parties 
and  the  slate1,  acknowledging  certain  duties  and  obligations 
to  the  public.  In  many  of  the  states  this  view  is  recognized 
in  legislation  requiring  the  appearance  in  divorce  cases  of 

346 


GENERAL    LEGISLATION  :  I  i  _' 

some  public  official  upon  whom  is  imposed  the  duty  of  look- 
ing after  and  protecting  the  interests  of  the  public. 

§472.    General  Legislation. 

In  the  District  of  Columbia,  by  act  of  congress,  the  United 
States  attorney  must  be  served  with  process,  and)  must  enter 
an  appearance  in  the  cause  in  all  divorce  cases  and  defend 
and  protect  the  rights  of  the  public.1 

In  Idaho  prosecuting  attorneys  are  required  to  appear  for 
i IK-  state  and  defend  in  nil  default  divorce  cases.-  In  Illinois 
the  prosecuting  attorney  must  defend  all  default  actions  for 
divorce.8  In  Indiana  the  statute  requires  the  public  prosecutor 
to  resist  all  undefended  applications  for  divorce.4  In  Ken- 
tucky the  court  must  appoint  an  attorney  to  defend  *in  all 
uncontested  divorce  actions.6  In  Oregon  service  must  be  made 
upon  the  district  attorney,  who  must  defend  on'  behalf  of  the 
state  in  all  divorce  cases.6  In  Utah  the  prosecuting  attorney 
must  defend  for  the  state  in  all  divorce  cases.7  In  Washington 
the  prosecuting  attorney  must  defend  all  uncontested  divorce 
cases  for  the  state.8  In  Wisconsin  ihe  prosecuting  attorney 
must  resist  all  undefended  applications  for  divorce.9 

Many  other  states  have  statutes  of  a  somewhat  similar  char- 
acter, and  it  may  be  said  that  the  modern  trend  of  legislation 
in  the  United  States  is  in  the  direction  of  affording  some  means 
of  protection  of  public  rights  and  public  policy  in  divorce 
litigation.  It  has  been  said  that  in  all  divorce  cases  there  are 
three  parties  in  interest,  the  plaintiff,  the  defendant,  and  the 
public.  This  is  unquestionably  true,  but  in  many  cases  there 
are  fourth  parties;  young  children,  whose  rights  and  interests 
are  equally  important,  and  many  times  more  in  need  of  public 
supervision  and  protection. 

§473.     Michigan  Statutory  Provisions. 

In  Michigan  the  legislature  seems  to  have  recognized  the 

1.  District  of  Columbia   Code,       tucky,  1909. 

1905.  6.     Lord's    Oregon   Laws,    1911- 

2.  Revised  Laws  of  Idaho,  1908,       1913. 

Laws  of  1915.  "•     Compiled     Laws     of     Utah. 

3.  Revised  Statutes  of  Illinois,       I907-  Session  Laws.  191:?. 

1913.  8.     Washington     Revised     Code 

4.  Burns    Annotated     Statutes       a°d  Statutes,  1910. 

of  Indiana,  1908.  9.     Revised  Statutes  of  Wiscon- 

5.  Revised     Statutes    of    Ken-       sin,   1913. 

347 


§474  PROSECUTING   ATTORNEYS 

necessity  of  protecting  the  interests  of  children  by  providing 
that  in  all  applications  for  divorce  the  names  and  ages  of  all 
children  of  the  marriage  must  be  stated  in  the  bill  of  com- 
plaint, and,  where  any  of  such  children  are  under  the  age  of 
fourteen  years,  a  copy  of  the  summons  by  which  the  action  is 
instituted  must  be  served  upon  the  prosecuting  attorney  of  the 
county  in  wfcich  the  action  is  pending.10 

This  statute  appears  to  be  mandatory  to  the  extent  that 
where  there  are  children  of  the  marriage  under  the  age  of 
fourteen  years  and  their  names  and  ages  are  not  stated  in  the 
bill  of  complaint  and  no  copy  of  the  summons  is  served  on  the 
proper  prosecuting  attorney,  a  decree  of  divorce  rendered  upon 
such  application  would  be  void,  or  at  least  voidable. 

§474.    Duty  on  being  Served  with  Summons. 

Upon  being  served  with  a  copy  of  the  summons  in  a  divorce 
case  where  there  are  children  of  the  marriage  under  the  age  of 
fourteen  years,  it  is  the  positive  duty  of  the  prosecuting  attor- 
ney to  enter  ah  appearance  in  the  cause,  and  he  should,  serve 
notice  of  such  appearance  on  the  attorney  for  the  plaintiff, 
and,  if,  in  his  judgment,  the  interests  .of  the  children  or  the 
public  good  so  require,  he  must  appear  at  the  hearing,  intro- 
duce evidence,  and  oppose  the  granting  of  a  decree  of  divorce. 
And  in  any  case,  wherein  there  are  no  children,  the  issue  of 
such  marriage,  under  the  age  of  fourteen  years,  when  it  shall 
appear  to  the  court  that  the  public  good  so  requires,  the  court 
may  enter  an  order  requiring  the  prosecuting  attorney  to 
appear  and  oppose  the  granting  of  a  decree  of  divorce.  Failure 
to  serve  the  summons  on  the  prosecuting  attorney  and  his  non- 
appearance  in  a  case  where  there  are  minor  children  will  not 
affect  the  jurisdiction  of  the  court,  and  are  mere  irregulari- 
ties. Where  the  interests  of  the  children  have  been  fully  pro- 
tected, a  divorce  will  not  be  disturbed  for  such  reason.11 

This  statute  does  not  contemplate  a  mere  pro  forma  appear- 
ance at  the  taking  of  the  testimony  of  the  parties  and  an 
examination  of  their  witnesses  in  order  to  see  if  he  will  oppose 
a  decree,  but  a  real  and  bona  fide  contest,  upon  evidence  intro- 
duced for  the  purpose  of  showing  that  the  interests  of  the 
children  require  that  a  divorce  should  not  be  granted.12  And 

10.  Mich.    C.    L.    '15,    (11433) ;        160  N.  W.  418. 

How.  2nd.  Ed.,  Sec.  11494.  12.     Wilcox  v.  Circuit  Judge,  83 

11.  C.    L.    '15,     (11433);   How.       Mich.  5,  47  N.  W.  R.  29. 
2nd.  Ed.,  Sec.  11494;  Cole  v.  Cole, 

348 


HI-TV  ox  r.Kixt;  si:it\i:i>  WITH   si  M.MONS 

» 

in  any  case  in  which  the  court  makes  ;m  order  requiring  the 
prosecuting  attorney  to  appear  and  oppose  the  granting  of  ;i 
decree  of  divorce,  it  is  equally  his  duty  to  oppose  the  granting 
of  such  decree,  in  good  faith,  by  introducing  testimony,  if  the 
circumstances  of  the  case  warrant  it.  to  show  that  the  interests 
of  (lie  public,  or  the  public  welfare,  require  that  no  decree  of 
divorce  he  granted  in  the  particular  case. 

Of  course  it  is  not  to  be  expected  i  hat  I  lie  prosecuting  attor- 
ney will  lind  it  necessary  in  all  cases  to  make  a  contest^  but  to 
enable  him  to  exercise  his  judgment  and  come  to  an  intelligent 
determination  as  to  whether  the  interests  of  the  children,  or 
ihe  public  good,  require  that  a  contest  should  be  made,  it  is 
necessary  that  he  should  make  a  proper  and  thorough  exami- 
nation and  investigation  to  obtain  information,  and  facts,  upon 
which  to  base  his  judgment.  Tpon  being  served  with  a  sum- 
mons, or  being  noiilied  of  the  order  of  tlie  court  requiring  it, 
he  should  tile  and  serve  notice  of  his  appearance  in  the  case. 
This -secures  to  him  a  copy  of  the  bill  and  the  right  to  notice 
of  all  subsequent  proceedings.  l'pon  receiving  a  copy  of  the 
bill  he  should  make  the  same  thorough  investigation  and  ex- 
amination of  all  of  the  circumstances  in  the  case  that  he  would 
in  any  other  case  .where  public  or  private  interests  are  involved, 
and  from  such  investigation  determine  whether  a  defense 
should  be  made,  either  in  behalf  of  the  public  good  or  in  the 
interests  of  the  children.  The  provisions  of  this  statute  are 
mandatory  and  were  enacted  to  furnish  a  remedy  for,  or  rather 
preventive  of,  a  recognized  evil,  and  they  should  be  scru- 
pulously observed  and  obeyed. 

A  practice  seems  to  have  grown  up,  and  to  some  extent  to 
prevail  in  some  jurisdictions,  by  which  the  prosecuting  attor- 
ney, when  served  with  a  summons  in  such  cases,  simply  makes 
a  report  in  writing  to  the  court,  when  requested  to  do  so  by 
the  plaintiffs  attorney,  without  having  entered  any  formal 
appearance  or  procured  a  copy  of  the  bill,  and  in  some  cases 
having  made  no  investigation,  or  merely  a  i>ro  forma  one,  upon 
which  he  reports  that  in  his  judgment  neither  the  interests  of 
the  children,  nor  the  public  good  require  him  to  oppose  a  decree. 
Whatever  may  be  the  effect  of  proceedings  of  that  character 
.upon  the  validity  of  a  decree  of  divorce,  we  have  no  hesitation 
in  saying  that  the  prosecuting  attorney  does  not  do  his  duty 
unless  the  statute  is  substantially  followed.  The  marriage 
relation  is  of  such  an  intimate  and  delicate  nature,  and  the 
public  good,  as  well  as  the  welfare  of  the  children,  are  so 

349 


§475  PROSECUTING   ATTORNEYS 

closely  connected  with  its  preservation  or  dissolution,  that  the 
legislature  has  wisely  seen  fit  to  make  it  the  positive  duty  of 
a  public  officer  to  investigate  in  certain  cases.  The  statute  is 
mandatory  upon  the  prosecuting  attorney,  and  he  should  com- 
ply substantially  at  least  with  its  provisions  whenever  it  be- 
comes his  duty  to  intervene.13  In  the  course  of  his  investiga- 
tion he  may  examine  the  parties  aid  their  witnesses  with  a 
view  of  determining  the  advisability  of  making  a  defense,  and 
in  many  cases,  or  in  perhaps  nearly  all,  such  examination  may 
be  the  best  and  sometimes  the  only  means  of  obtaining  the 
necessary  information.  If  the  parties  or  their  witnesses  de- 
cline to  give  him  the  information  he  desires,  that  fact  alone, 
may  be  a  sufficient  reason,  for  his  appearance  at  court  at  the 
time  of  the  hearing,  where  he  will  have  an  opportunity  to 
examine  the  witnesses  and  invoke  the  aid  of  the  court,  if  neces- 
sary, to  compel  the  parties  or  either  of  them  to  appear  and 
testify  in  open  court.  Tr\ie,  he  cannot  compel  the  witnesses 
to  appear  and  testify  before  himself,  but  if,  when  requested 
to  do  so,  the  parties  or  their  witnesses  decline  or  refuse  to  be 
interviewed  by  him,  or  refuse  to  give  him  the  necessary  infor- 
mation, that  fact  may  well  be  treated  as  raising  a  strong 
suspicion  of  collusion  and  afford  ample  reason  for  the  prose- 
cutor to  appear  before  the  court,  compel  the  attendance  of  the 
parties,  and  subject  them  to  a  rigid  examination. 

§475.     Subjects  of  Investigation. 

The  statute  does  not  point  out  the  particular  subjects  which 
the  prosecuting  attorney  is  required  to  investigate.  It  simply 
requires  him  to  make  such  an  investigation  as  will  enable  him 
to  determine  whether,  in  his  judgment,  the  interests  of  the 
children  or  the  public  good  require 'that  a  defense  should  be 
made.  This  is  an  official  duty  which  he  has  no  right  to  evade 
or  neglect.  The  legislature,  in  the  exercise  of  its  authority  for 
the  furtherance  of  a  wise  public  policy,  has  enacted  that  no 
collusive  divorces  shall  be  granted  by  the  courts.  The  large 
number  and  rapid  increase  of  uncontested  divorce  cases  in  the 
country  leave  room  for  the  inference  that  a  large'  percentage 
of  them  are  more  or  less  the  result  of  collusion  between  the 
parties.  The  provision  of  the  statute  that  a  person  making 
application  for  a  divorce  must  swear  that  there  is  no  collusion, 
understanding  or  agreement  between  the  parties  in  regard  to 

13.     Wilcox    v.    Circuit    Judge,  83  Mich.  1,  47  N.  W.  R.  29. 
350 


ri:osi:ri  Tc>K    NOT  I>lSorAI.IKIi:i>  TO  ACT  FOR  EITHER  TARTY 

such  ;ipplir;ilioii  is  easily  evaded  and  does  not  seem  to  accom 
plish  the  object  or  purpose  for  which  it  was  evidently  intended. 
Hence,  when  t lie  prosecut '11112;  attorney  is  called  upon  by  1'mv<- 
of  the  statute  or  order  of  the  court  to  appear  in  a  case,  it  is  his 
positive  duty  to  make  a  thorough  investigation  to  satisfy  bin) 
self  whether  si>ch  collusion  exists,  and  if  he  has  reasonable 
ground  to  believe  that  it  does  exist,  it  is  his  duty  to  contest 
the  application.  He  should  also  ascertain  the  number  and  age 
of  the  children  of  the  marriage,  what  means  will  be  afforded 
for  their  care,  training,  education  and  support  in  case  the 
marriage  is  dissolved  and  their  home  broken  up;  and  if  in  his 
judgment  their  interests  will  be  seriously  jeopardized  by  a  dis- 
solution of  the  marriage,  he  should  use  all  reasonable  efforts  in 
opposition  to  the  application.  In  the  discharge  of  the  duty 
imposed  upon  him  by  the  statute  under  consideration,  -  he  is 
vested  with  a  personal  discretion  as  a  minister  of  justice,  and 
not  as  a  mere  legal  attorney,  and  he  must  act  impartially.  He 
must  guard  the  real  interests  of  the  public  as  well  as  those  of 
young  children  regardless  of  the  desires  of  the  plaintiff  or  the 
defendant ;  and  he  must  not  become  entangled  with  the  private 
interests  of  the  parties,  nor  their  grievances. 

§476.    Prosecutor  not  Disqualified  to  Act  for  Either  Party. 

Unlike  the  general  laws  of  the  state'defining  and  regulating 
the  duties  of  prosecuting  attorneys,  this  statute  does  not  pre- 
vent them  from  acting  as  attorney  or  counsel  for  either  party 
in  a  divorce  case,  but  if  they  are  retained  as  such  their  obliga- 
tions and  duties  as  ministers  of  justice  in  the  particular  case 
cease,  and  the  court  is  charged  with  the  duty  of  appointing 
some  reputable  attorney  to  perform  such  services  as  the  prose- 
cuting attorney  would  have  been  required  to  perform  if  he  had 
not  been  retained  by  one  of  the  parties  in  the  case;  and  such 
appointed  attorney  is  entitled  the  same  compensation  as  the 
statute  provides  for  similar  services  by  the  prosecuting  attor- 
ney. Under  this  statute  it  is  the  positive  duty  of  the  court,  in' 
every  divorce  case  where  there  are  children  of  the  marriage 
under  the  age  of  fourteen  years,  to  appoint  an  attorney  t<> 
represent  the  children  t\nd  the  public  if  the  prosecuting  attor- 
ney of  the  county  is  retained  by  one  of  the  part  ies  to  the  action. 
This  duty  sometimes  appears  to  be  overlooked.  It  ought  not 
to  be,  however,  for  if  the  interests  of  the  public  and  of  yonng 
children  are  such  that  they  need  the  supervision  and  protection 


351 


.§477  I'ROSKCfTIXG    ATTORNKYS 

of  a  disinterested  public' official,  and  that  duty  is  laid  upon  the 
prosecuting  attorney  of  the  county,  he  ought  not  to  be  per- 
mitted to  accept  a  private  retainer  in  those  cases  where  it  is 
his  statutory  duty  to  represent  the  public  interests;  and  in 
case  he  is  permitted  to  do  so,  some  disinterested  attorney 
ought  in  all  cases  to  be  appointed,  and  the  court  has  power  to 
see  that  the  duties  of  such  appointment  are  faithfully  per- 
formed. 

§477.     Compensation  for  Services. 

The  statute  provides  for  the  payment  to  the  prosecuting 
attorney,  or  to  the  attorney  appointed  by  the  court  to  perform 
his  duties  where  he  has  accepted  a  retainer  from  one  of  the 
parties,  the  pitifully  small  sum  of  five  dollars,  for  services 
which  if  performed  for  private  interests  would  be  compensated 
by  many  times  that  sum.  This  fact  is  certainly  not  a  very 
great  inducement  to  the  performance  of  services  which  are 
generally  regarded  as  of  only  a  quasi  public  character,  as 
thoroughly  as  the  real  necessities  of  the  occasion  may  demand. 
The  other  duties  which  the  general  laws  of  the  state  impose 
upon  prosecuting  attorneys,  and  for  which  in  most  counties 
they  receive  ridiculously  small  salaries  compared  with  the 
amoiwit  of  work  they  are  required  to  dor  are  many  and  com- 
plicated, and  in  most  counties,  if  properly  performed,  occupy 
the  entire  time  and  attention  of  the  public  prosecutor.  This, 
however,  affords  no  excuse  for  neglect  or  indifference  in  the 
performance  of  those  official  duties  which  this  statute  imposes, 
and  which  are  assumed  by  the  public  prosecutor  when  he 
accepts  his  official  position. 


352 


CHAPTER  XLI. 

AiM'KALs  TO  sui'i;i:.Mi:  coi  I;T. 

§478.  Who  may  Appeal. 

$479.  Claim  of  Appeal. 

§480.  Extension  of  Time  for  Appeal. 

§481.  Bond  to   Stay  Proceedings. 

§482.  Evidence— How  Settled. 

§483.  Method  of  Settling  the  Evidence  for  Review. 

§484.  Notice  of  Settling  Case  on  Appeal. 

§485.  Duty  of  Clerk. 

§486.  Original  Files  may  be  Dispensed  with — When. 

§487.  Extension   of  Time   for   Making   Return. 

§488.  Motion  to  Dismiss. 

§489.  Service  of  Papers. 

§490.  Notices — How  served. 

§491.  Computation  of  Time. 

§492.  Court  may  Direct  Manner  of  Service — When. 

§493.  Practice  Relating  to  Motions. 

8494.  Motion  Days  and  Motion  Docket. 

§495.  -Notice  of  Argument  of  Causes. 

§49o.  Record  to  be  Printed  and  Served. 

§497.  .  Contents  and  Service  of  Briefs. 

§498.  Call  of  Cases  and  Argument.  • 

§499.  Taxation  of  Costs. 

§500.  Application  for  Rehearing — Costs. 

§478.     Who  may  Appeal. 

Any  ]»l;i  in  tiff  or  defendant  who  conceives  himself  aggrieved 
Ity  ;in  order  sustaining  or  overruling  any  motion  to  dismiss, 
based  on  jurisdictional  grounds  or  on  issues  which  under  the 
•former  pi-act  ice  would  have  been  raised  by  demurrer,  plea  to 
the  jurisdiction  or  other  dilator}7  plea,  or  by  the  decree  or  linal 
order  of  the  circuit  court  in  chancery  in  any  cause,  may  appeal 
to  the  Supreme  Court. 

If  an  appeal  is  taken  from  an  order  sustaining  or  overruling 
a  motion  to  dismiss,  upon  the  decision  thereof  bjr  the  Supreme 
Court  the  cause  will  be  remanded  to  the  circuit  court  in  chan- 
cery, and  the  plain t ill'  may  amend  his  bill  of  complaint,  or  the 
det'endani  may  file  his  answer,  as  the  case  may  be.  within  such 
time  as  the  order  of  the  Supreme  Court  remanding  the  case 

353 


§470  APPEALS  TO  SUPREME  COURT 

may  prescribe,  and  the  case  will  then  be  disposed  of  as  though 
no  appeal  had  been  taken. 

Where  there  are  two  or  more  defendants  and  all  do  not 
move  to  dismiss,  the  proceedings  as  to  those  who  do  not  join, 
in  the  motion  to  dismiss  or  in  the  appeal  will  be  stayed,  except 
as  to  filing  and  serving  pleadings,  until  the  motion  is  finally 
disposed  of.  No  appeal  will  lie  from  an  order  denying  a  mo- 
tion to  dismiss,  except  upon  an  order  signed  by  a  justice  of  the 
Supreme  Court  allowing  such  appeal;  but  such  appeal  will  be 
allowed  unless  the  justice  or  justices  of  the  Supreme  Court 
who  consider  the  application  shall  affirmatively  determine  that 
the  petition  for  the  allowance  of  such  appeal  does  not  present 
a  meritorious  question.1 

§479.     Claim  of  Appeal. 

If  an  appeal  is  to  be  taken  from  an  order  sustaining  a 
motion  to  dismiss,  or  from  a  final  decree  after  a  hearing  on 
the  merits,  on  pleadings  or  pleadings  and  proofs,  a  written 
claim  of  appeal  must  be  filed  with  the  clerk  of  the  court  where 
such  order  or  decree  was  entered,  within  twenty  days  after  the 
entry  of  such  order  or  decree,  and  within  the  same  time  the 
party  claiming  jthe  appe"al  must  pay  a  fee  of  five  dollars  to 
the  clerk.  When  such  order  or  decree  is  entered  in  vacation 
the  time  for  taking  an  appeal  is  computed  fBom  the  time  of 
serving  notice  of  such  decree 'or  order.2 

If  the  appeal. is  to  be  taken  from  an  order  denying  or  over- 
ruling a  motion  to  dismiss,  a  written  claim  of  appeal  must  be 
filed  with  the  clerk  of  the  court  where  such  order  or  decree 
was  entered  within  the  same  time,  and  an  application  made  to 
a  justice  of  the  Supreme  Court  for  an  order  allowing  an  ap- 
peal.3 Such  application  should  be  by  petition,  verified  by  the 
oath  of  the  party  or  of  some  one  in  his  behalf.  The  petition 
should  recite  the  names  of  the  parties  to  the  suit  and  of  the 
party  or  parties  claiming  the  right  to  appeal,  with  the  sub- 
stance of  the  decree  and  the  date  it  was  entered.  The  statute 
does  not  prescribe  the  form  or  contents  either  of  the  claim  of 

appeal  or  of  the  petition  to  the  Supreme  Court  for  an  order 

i 

1.  C.   L.   1915,    (13753);    P.   A.  page   337;    Cummins   &   Beecher's 
1915,  Act.  No.  314,  Ch.  50,  Sec.  18,  Mich.   Judicature  Act,    §1876. 
page   336;    Cummins   &   Beecher's  3.     C.    L.    1915,    (13753);    P.  A. 
Mich.  Judicature  Act,  §1875.  1915,  Act  No.  314,  Ch.  50,  Sec.  18, 

2.  C.    L.   1915,    (13754);    P.   A.  page   337;    Cummins    &   Beecher's 
1915,  Act  No.  314,  Ch.  50,  Sec.  19,  Mich.  Judicature  Act,  §1875. 

354 


r.oxn  TII  STAY  I-IJIM  i:i;i.i\  ;;  M 

allowing  ;ui  appeal.  ,The  claim  of  appeal  sliniilil  lie  entitled  in 
the  court  and  cause,  ;nnl  should  stair  briefly  tin*  grounds  upon 
which  an  appeal  is  claimed.  It  should  he  signed  liy  all  of  the 
parlies  who  claim  the  lienelit  of  an  ajipejil,  and  a  copy  should 
be  served  <»u  counsel  for  all  of  the  parties  who  do  not  join  in 
the  claim  of  appeal,  whether  plaintiffs  or  defendants. 

H80.     Extension  of  Time  for  Appeal. 

The  court  in  which  such  decree  or  order  was  entered,  or  the 
jud«;e  thereof  at  chambers,  or  any  justice  of  the  Supreme 
Court,  upon  cause  shown  ami  notice  to  the  opposite  parly,  may 
•  •Mend  the  time  for  taking  and  ]>erfectinii  such  appeal  not* 
more  than  one  year  from  the  date  of  the  order  or  decree  ap- 
pealed from.  If  the  party  claiming  the  appeal  has  been  pre- 
vented by  circumstances  beyond  his  control  from  taking  and 
perfecting  the  same  within  the  period  of  one  year  from  tin- 
date  of  the  entry  of  such  order  or  decree,  the  Supreme  Court, 
or  one  of  the  justices  of  that  court,  at  chambers,  may  ^rant  a 
farther  extension  of  time,  not  exceeding  six  months,  for  taking 
and  perfect  iu»-  such  appeal.  Such  extension  can  be  granted 
only  on  special  motion  after  notice  to  the  opposite  party,  and 
upon  a  proper  showing.4 

§481.    Bond  to  Stay  Proceedings. 

An  appeal  in  a  chancery  case  does  not  operate  to  stay  pro- 
ceedings in  the  suit  unless  the  party  taking  the  appeal  shall, 
within  the  time  allowed  for  perfecting  the  same,  tile  with  the 
clerk  of  the  court  in  which  the  order  or  decree  appealed  from 
was  entered,  a  bond  to  the  appellee  or  appellees,  with  one  or 
more  sureties  to  be  approved  by  the  circuit  judiic.'or  a  circuit 
court  commissioner  of  the  county,  or  a  justice  of  the  Supreme 
Court.  The  penalty  of  such  bond  is  fixed  by  the  judj_re  or  com- 

inissh r  who  approves  the  same,  and  it  must   be  conditioned 

for  the  performance  or  satisfaction  of  the  final  order  or  decree 
of  the  Supreme  Court  in  the  cause,  and  the  payment  of  all  costs 
of  t  he  appellee  or  appellees  in  the  mailer  of  the  appeal.  Notice 
of  the  application  for  the  approval  of  such  bond  must  be  uiven 
to  the  appellee  the  same  as  on  special  motions,  and  such  notice 
must  state  the  penalty  of  the  proposed  bond,  the  names  of  the 

4.     C.   L.    1915,    (13755);    P.   A.       page  337;    Cummins  &   Beecher's 
1915,  Act  No.  314,  Ch.  50,  Sec.  20,       Mich.  Judicature  Act,  $1877. 

355 


§482  APPEALS  TO  SUPREME  COURT 

sureties  therein,  and  the  appellee  may  be  heard  as  to  the 
sufficiency  of  the  penalty  and  the  responsibility  of  the  sureties. 
In  case  such  bond  has  been  approved  by  a  circuit  court  com- 
missioner, the  circuit  court  in  which  such  order  or  decree  was 
entered,  or  the  judge  of  such  court  at  chambers,  may  on 
motion  order  an  additional  bond  and  fix  the  penalty  thereof 
and  approve  the  sureties  therein.  The  Supreme  Court,  or  any 
justice  thereof,  may  also  on  motion,  and  a  proper  showing, 
order  an  additional  bond  after  an  appeal  has  been  perfected, 
and  fix  the  penalty  thereof  and  approve  the  sureties  therein.5 
If  an  appeal  bond  is  not  filed  the  proceedings  in  the  lower 
court  will  not  be  stayed,  and  the  opposite  party  may  proceed, 
at  his  peril  however,  to  enforce  the  decree  as  he  understands 
his  rights  under  its  terms.6 

§482.    Evidence— How  Settled. 

If  the  decree  from  which  the  appeal  is  to  be  taken  was 
entered  after  a  hearing  on  pleadings  and  proofs,  the  evidence 
taken  and  used  on  the  hearing,  whether  taken  in  open  court 
or  before  a  commissioner  or  by  deposition,  or  in  any  other 
manner,  must  be  settled  for  review  on  appeal  in  the  same 
manner  and  within  the  same  time  as  is  provided  by  law  or  the 
rules  of  practice  for  the  settlement  of  bills  of  exception.7 

The  rules  of  practice  allow  a  party  not  less  than  twenty  days 
after  the  entry  of  the  order  or  decree  appealed  from  for  the 
settlement  of  a  case  containing  the  evidence  for  review  in  the 
Supreme  Court  in  a  chancery  case,  but  a  stay  of  proceedings 
during  such  twenty  days  is  discretionary  with  the  court.8  The 
court  may  grant  such  further  reasonable  time  to  settle  such 
case  as  may  be  deemed  proper,  subject  to  the  limitations  pre- 
scribed by  statute,  and  upon  such  terms  and  conditions  as  may 
be  deemed  just;  but  no  more  than  sixty  days  further  time  will 
be  granted  fo*'  that  purpose,  except  for  good  cause  shown  by 

5.  C.   L.    1915,    (13756);    P.   A.  129    N.   W.  R.   878;    Macomber  v. 
1915,  Act  No.  314,  Ch.  50,  Sec.  21,  Cottrell,  162  Mich.  720,  127  N.  W. 
page    337;    Cummins  &  Beecher's  R.     402;      Commercial     National 
Mich.  Judicature  Act,  §1878.  Bank  v.   Gaukler,   164  Mich.   215, 

6.  Pinel    v.    Pinel,    172    Mich.  129  N.  W.  R.  195;   Hulan  v.  Cir- 
611,  138  N.  W.  R.   219.  cuit  Judge,  159  Mich.  608,  124  N. 

7.  C.    L.    1915,    (13757)  ;    P.   A.  W.  R.  574. 

1915,  Act  No.  314,  Ch.  50,  Sec.  22,  8.     C.    C.    Rules,    1916,    No.    66, 

page   338;    Cummins  &  Beecher's  Sec.     1;     Cummins    &    Beecher's 

Mich.      Judicature      Act,      §1879;  Mich.  Rule  Book,  page  653. 
Winegar  v.   Fritz,  164  Mich.   427, 

356 


i:\ii. i:\ci;  (482 

;ini(];i\it  nil  special  motion.  after  notice  to  I  he  adverse  party, 
or  on  the  written  stipulation  of  the  part  ics. '  Tin-  statute  ;in<l 
rules  of  court  d<>  not  slate  what  will  constitute  good  cause  for 
extending  the  lime.  That  matter  seems  to  have  been  lefi 
largely  to  the  discretion  of  the  trial  judge,  and  he  must  depend 
largely  upon  the  ]»articular  circumstances  of  each  case  as  the 
same  is  brought  before  him  for  action  and  determination.  If 
the  transcript  of  the  testimony  can  be  obtained  from  the  court 
stenographer  without  much  delay  the  eighty  days  allowed  by 
the  rule  will  ordinarily  give  ample  time  to  settle  the  case.  It 
is  the  general  practice,  on  request  of  counsel  for  either  party 
at  the  time  a  final  decree  is  settled  and  entered  in  a  chancery 
case,  to  allow  eighty  days  to  settle  a  case  for  review  in  the 
Supreme  Court.  But  no  stay  of  proceedings  can  be  ordered 
for  such  purpose  for  a  longer  period  than  twenty  days  from 
the.  time  the  decree  was  entered,  unless  the  party  applying  for 
such  stay,  if  a  decree  shall  have  been  rendered  against  him, 
shall  execute  a  bond  to  the  adverse  party  as  described  in  t In- 
preceding  section.  In  case  the  party  applying  for  such  stay  of 
proceedings  shall  be  unable  to  give  such  bond  by  reason  of 
poverty,  the  judge  may,  upon  due  proof  of  inability,  for  such 
reason  grant  such  stay  without  requiring  such  bond.10 

It  must  be  borne  in  mind  by  the  practitioner  that  the  time 
for  tiling  the  claim  of  appeal  and  for  paying  to  the  clerk  tin- 
fee  of  live  dollars  for  making  the  return  has  been  changed  by 
the  Judicature  Act.  Formerly  the  claim  of  appeal  and  pay- 
ment of  the  fee  could  be  tiled  and  made  at  any  time  within  for 
ty  days  after  the  settlement  of  the  case  for  review  in  the  Su 
preme  Court.  Under  the  new  practice  no  material  change  has 
been  made  as  to  the  time  within  which  the  case  for  appeal  may 
lie  settled,  but  it  should  be  remembered  that  the  claim  of  ap- 
peal must  now  be  made  and  filed  with  the  clerk,  and  the  fee 
paid  and  notice  thereof  given  to  the  adverse  party,  within 
twenty  days  from  the  lime  the  decree  is  entered. 

The  filing  of  the  claim  of  appeal  and  the  payment  of  the  fee 
of  five  dollars  to  the  clerk  for  making  the  return  within  the 

9.  C.    C.    Rules.    1916.   No.    66,       129    N.   W/R.    878;    Commercial 
Sec.     2;     Cummins    &    Beecher's       National     Bank    v.    Gaukler,     164 
Mich.  Rule  Book,  page  653.  Mich.    215.    129    N.    W.    R.    195; 

10.  C.  L.  1915,    (13758):   P.  A.  Macomber   v.    Cottrell.    162   Mich. 
1915,  Ac.t  No.  314,  Ch.  50,  Sec.  23,  720,  127  N.  W.  R.  402;    Hulan  v. 
page   338;    Cummins  &  Beecher's  .Circuit  Judge.  159  Mich.  608,  121 
Mich.      Judicature      Act,      §1880;  N.  W.  R.  574. 

Winegar  v.  Fritz,  164  Mich.  427, 

357 


APPEALS  TO  SUPREME  COURT 

time  required  by  the  statute  are  jurisdictional  prerequisites, 
and  failure  to  comply  within  the  time  prescribed  is  fatal  to  the 
right  to  appeal.11  But  where  the  party  desiring  to  appeal  is 
prevented  from  doing  so  within  the  time  prescribed  by  the 
statute  by  the  default  of  the  court  or  any  of  its  officers,  the  ap- 
peal will  not 'be  dismissed.12 

§483.     Method  of  Settling  the  Evidence  for  Review. 

After  a  final  decree  has  been  settled  the_party  who  desires 
to  appeal  should,  as  soon  as  practicable,  order  and  procure 
from  the  court  stenographer  a  transcript  of  the  testimony 
taken  on  the  trial  of  the  cause.  Any  unnecessary  or  unex- 
plained delay  in  doing  so  will  be  a  good  reason  for  a  denial  of 
nn  application  for  an  extension  of  time  to  settle  a  case  for  re- 
view if  such  application  should  be  made.  On  the  other  hand 
if  a  timely  application  for  such  transcript  is  made,  and -for 
any  reason  the  stenographer  fails  to  furnish  such  transcript  in 
time  to  prepare  the  case  on  appeal  for  settlement,  that  fact 
will  furnish  good  "cause  for  an  extension  of  time. 

When  the  transcript  of  the  testimony  is  procured,  counsel 
for  the  appellant  should  prepare  a  case  for  settlement  and  re- 
view, and  procure  thereto  the  signature  of  the  circuit  judge 
who  heard  the  cause.  In  preparing  the  case  for  review  on  ait- 
peal,  the  testimony  should  be  condensed  as  much  as  can  be 
consistently  done,  and  should  be  in  narrative  form,  except  in 
those  instances  where  it  may  become  necessary  to  give  the 
questions  and  answers  that  there  be  a  proper  understanding  of 
the  same.  If  any  part  of  the  testimony  is  set  out  in  the  pro- 
posed case  on  appeal  by  questions  and  answers,  the  trial  judge 
who  settles  the  case  must  certify  in  writing  that  he  deems  it- 
material  and  necessary  in  order  to  give  a  full  understanding 
of  the  questions  involved,  that  such  parts  of  the  case  as  are  set 
forth  by  questions  and  answers  should  be  so  set  forth.1"1 

The  case  proposed  for  settlement  must  contain  the  substance 

11.  Perkins     v.     Perkins,     173  Mich.  695,  140  N.  W.  R.  161;  Cam- 
Mich.    695,    140    N.    W.    R.    161;  eron   v.   Calkins,   43  Mich.   191,   5 
Bennett  v.  Hickey,  110  Mich.  628,  N.  W.  R.  292;  Kalamazoo  v.  Kala- 
68    N.    W.    R.    650;    Trombley    v.  mazoo  Heat,   Light  &  Power  Co. 
Klersy,  139  Mich.  311,  102  N.  W.  122  Mich.   489,  81   N.  W.  R.  426; 
R.  736;   Thompson  v.  McKay,  154  Waterman    v.    Bailey,    111    Mich. 
Mich.  228,  117  N.  W.  R.  624;  Lum  571,   69   N.  W.  R.   1109.      . 

v.  Fairbanks,' 155  Mich.  23,  118  .  13.  C.  C.  Rules,  1916,  No.  66, 
N.  W.  R.  578.  Sec.  8;  CUmmins  &  Beecher's 

12.  Perkins     v.     Perkins,     173        Mich.  Rule  Book,  page  655. 

358 


or  SKTTI.IM;  CASK  ox  AIM-HAL 

•  •I'  .ill  the  lest  iinoiiy  taken  iinil  read  on  the  trial  and  all  of  the 
proceedings  IKK)  during  tin-  trial  under  tin-  provisions  of  the 
Judicature  Ad.  rhapter  Seventeen.  Section  Five,  relating  to 
excluded  Icsl  inioiiy  offered  on  tin-  trial.14 

§484.     Notice  of  Settling  Case  on  Appeal. 

After  the  case  on  appeal  lias  been  prepared  in  accordance 
\\ith  the  statute  and  rules  of  practice,  a  copy  of  the  same,  to 
-i-ilier  with  a  notice  of  when  and  where  the  same  will  be  pre- 
sented for  settlement  and  signature  by  the  judge  who  tried  the 
rase,  must  be  served  on  the  adverse  party  at  least  four  days 
before  the  time  fixed  for  such  settlement.1-"'  The  party  pro- 
posing such  settlement  must  furnish  the  adverse  party  with 
such  portions  of  the  stenographer's  transcript  of  his  minutes 
as  shall  have  been  procured,  for  inspection  and  use  for  such 
adverse  partv  in  the  preparation  of  amendments  to  the  pro- 
posed case,  together  with  the  original  copies  of  such  exhibits, 
papers  and  writings,  or  documents  as  are  incorporated  in 
such  proposed  case,  and  may  also  be  required  to  furnish  a  copy 
of  such  further  portions  of  the  stenographer's  minutes  as  shall 
be  deemed  necessary  by  the  court  to  a  settlement  of  such 
case."1  Amendments  to  such  proposed  case  may  be  prepared 
in  writing  by  the  opposite  party,  and  all  contentions  respect- 
ing the  same  will  be  determined  by  the  trial  judge  according  to 
the  facts  at  such  time  and  place  as  he  shall  appoint.17  The 
parties  or  their  attorneys  may  agree  upon  a  statement  of  fad< 
without  procuring  a  transcript  of  the  testimony  from  the  sten- 
ographer, and  in  such  case,  if  satisfactory  to  the  judge  who 
heard  the  case  or  proceedings,  or  any  other  judge  with  authori- 
ty in  the  premises  under  the  statute  and 'rules  of  practice,  it 
will  be  signed  and  certified  to  by  such  judge,  and  when  so 
signed  and  certified  it  will  stand  as  the  case  for  review  in  the 
Supreme  <  'otirt.18 

When  the  case  for  review  by  the  Supreme  Tourl  has  been 
settled  and  signed  by  the  circuit  judge  it  is  delivered  to  the 
-appellant,  who  is  required  to  tile  it  with  the  clerk  of  the  cir- 

14.  C.   C.   Rules,   1916,   No.   66,       Mich.  Rule  Book,  page  654. 

Sec.    7;     Cummins     &    Beecher's  17.     C.   C.   Rules,   1916.   No.   66, 

Mich.  Rule  Book,  page  655.  Sec.     9;     Cummins     &     Beecher's 

15.  C.   C.   Rules,   1916.   No.   66.       Mich.  Rule  Book,  page  655. 

Sec.     9,     Cummins     &     Beecher's  18.     C.   C.   Rules.   1916,   No.   66, 

Mich.  Rule  Book,   page  655.  Sec.    10;    Cummins    &    Beecher's 

16.  C.   C.   Rules,   1916,   No.   66.  Mich.  Rule  Book,  page  655. 
Sec.     3;   'Cummins    &     Beecher's 

359 


§485  APPEALS  TO  SUPREME  COURT 

cuit  court  within  ten  days  thereafter,  and  if  not  filed  within 
that  time  the  appellant  will  be  deemed  to  have  waived  the 
benefit  of  such  case  for  review,  unless  further  time  shall  be  al- 
lowed for  filing  the  same  by  the  trial  judge  on  special  motion 
for  cause  shown.19 

Whenever  the  judge  who  heard  the  cause  shall  die,  resign, 
or  vacate  the  office  before  the  expiration  of  his  term,  or  when- 
ever he  shall  be  unable  to  settle  the  case  for  review  by  reason 
of  sickness,  absence  from  the  state,  or  for  any  other  cause 
whatsoever,  within  the  time  prescribed  by  the  statute  and 
rules  of  practice,  such  evidence  may  be  settled  by  any  other 
judge  of  the  same  circuit,  and  in  case  there  shall  be  no  other 
judge  of  such  court,  or  in  case  of  his  or  their  absence  or  dis- 
ability from  any  cause,  then  such  evidence  may  be  settled  by 
the  successor  of  such  judge,  if  not  disqualified,  or  by  any  cir- 
cuit judge.20  The  several  sections  of  Rule  Sixty-six  and  Chapter 
Fifty  of  the  Judicature  Act  before  cited  cover  the  practice  in 
relation  to  the  settlement  of  the  evidence  in  chancery  cases 
for  review  in  the  Supreme  Court.  It  should  be  remembered, 
however,  that  in  all  chancery  appeals  a  written  claim  of  ap- 
peal must  be  filed  within  twenty  days  from  the  time  of  the 
entry  of  the  decree  or  order  appealed  from,  and  within  the 
same  time  the  fee  of  five  dollars  paid  to  the  clerk  of  the  court 
for  making  the  return,  whether  the  case  for  review  is  yet  set- 
tied  or  not.  The  requirements  of  this  rule.  No.  6G,  are  man- 
datory and  can  be  waived  only  in  writing  duly  filed  and  pre- 
sented as  the  foundation  for  the  action  of  the  court.21 

§485,    Duty  of  Clerk. 

Within  fifteen  days  after  an  appeal  is  perfected  it  is  the 
duty  of  the  clerk  of  the  court,  upon  the  payment  to  him  by  the 

19.  C..  C.{  Rules,   1916,   No.    66,  Judge,  117  Mich.  318,  75  N.  W.  R. 
Sec.    11;     Cummins    &    Beecher's  609;      Hayes     v.     Ionia     Circuit 
Mich.  Rule  Book,  page  655.  Judge,  125  Mich.  277,  84  N.  W.  R. 

20.  C.   C.   Rules,    1916,   No.   66,  141;   Kaiser  v.  Circuit  Judge,  162 
Sec.    12;    Cummins     &    Beecher's  Mich.    247,    127    N.    W.    R.    336;. 
Mich.   Rule  Book,  page  656.  Pettinger   v.    Circuit    Judge,     164 . 

21.  Burgess    v.    Circuit    Judge,  Mich.  463,  129  N.  W.  R.  676. 

171  Mich.  583,  137  N.  W.  R.  247;  The  notice  and  showing  re- 
Hill  v.  Hill,  114  Mich.  599,  72  N.  quired  by  the  Rule  may  be  waived 
W.  R.  597:  Lake  Shore  &  M.  S.  R.  under  certain  circumstances;  Wil- 
R.  Co.  v.  Circuit  Judge,  116  Mich.  kins  v.  Circuit  Judge,  125  Mich. 
399,  74  N.  W.  R.  529;  Roach  v.  62&  84  N.  W.  R.  1107;  Culver  v. 
Circuit  Judge,  117  Mich.  242,  75  Circuit  Judge,  141  Mich.  644,  105 
N.  W.  R.  465;  Singer  v.  Circuit  N.  W.  R.  139. 

360 


OI;K;I\AI.  FII.KS  .MAY   r.i:  IUSI-HNSKK  WITH  §48G 

appellant  of  the  sum  of  I'm*  dollars  jis  liis  fee,  to. attach  to- 
gether the  original  bill.  process,  answer,  and  all  other  pro 
crcdings.  processes,  niolions.  notices,  orders  and  derives  which 
have  been  tiled  in  the  cause,  together  with  The  testimony  as 
settled,  signed  and  cerlitied  to  by  the  judge,  as  well  as  a  copy 
of  all  joni-nal  or  calendar  entries  and  all  other  proceedings  of 
record  in  the  cause  not  embraced  in  the  original  papers  above 
mentioned,  and  transmit  the  same  to  the  Supreme  Court,  to- 
gether with  his  certiticate  of  the  genuineness  of  such  originals 
and  the  correctness  of  such  copies  of  such  journal  and  calendar 
entries  and  records.  The  appeal  will  be  deemed  to  have  been 
perfected  upon  the  filing  of  the  claim  of  appeal  and  payment 
of  the  clerk's  fee  at  any  time  within  twenty  days  after  the 
entry  of  the  order  or  decree  appealed  from,  unless  it  shall  be 
necessary  to  settle  a  case.  In  all  causes  where  it  becomes 
necessary  to  settle  a  case  for  review,  the  appeal  will  be  deemed 
1o  have  been  perfected  when  snch  case  shall  be  settled  .and 
signed. " 

§486.     Original  Files  may  be  Dispensed  with — When. 

The  new  circuit  court  rules  provide  that  "in  cases  removed 
to  the  Supreme  Court  for  review  by  a  writ  or  error,  case  made, 
or  appeal,  the  transcript  of  the  record  in  writs  of  error  and 
the  transmission  of  the  original  liles  in  appeal  cases  may  be 
dispensed  with  under  the  following  circumstances  and  condi- 
tions: The  appellant  shall  attach  to  the  bill  of  exceptions, 
case  made,  or  case  settled,  but  separate  therefrom  copies  or  a 
fair  abstract  of  each  material  pleading  and  document,  order, 
verdict,  judgment  or  decree  filed  of  record  in  the  case,  all  to 
be  arranged  chronologically;  those  made  or  tiled  before  the 
judgment,  order  or  decree  to  appear  before  the  statement  relat- 
ing to  the  testimony;  those  made  or  entered  after  the  trial  to 
be  entered  after  the  statement  made  of  the  testimony :  all  to  be 
duly  settled  and  certified  by  the  judge.  The  clerk  forthwith, 
after  filing  of  the  same,  shall  transmit  the  same  to  the  clerk 
of  the  Supreme  Court,  which  shall  be  the  record  of  said  court 
for  further  action  in  the  case,  unless  the  Supreme  Court  shall. 

22.     C.  L.  1916,   (13759);   P.  A.  National    Bank    v.    Gaukler,    164 

1915, .Act  No.  314,  Ch.  50.  Sec.  24,  Mich.    215,    129    N.    W.    R.    195; 

page  339;    Cummins    &   Beecher's  Macomber   v.    Cottrell,   162   Mich. 

Mich.      Judicature      Act,      §1881;  720,   127  N.  W.  R.  402;   Hulan  v. 

Winegar  v.   Fritz,  164  Mich.  427,  Circuit  Judge,  159  Mich.  608,  124 

129    N.    W.    R.    878;    Commercial  N.  W.  R.  574. 

361 


A1TKALS    TO    SUPREME    COURT 

by  order,  require  further  copies  or  abstracts  of  such  pleadings 
;iiid  proceedings,  or  the  originals  thereof,  to  be  returned.  A 
fee  of  five  dollars  shall  be  paid  to  the  clerk  for  the  tiling  and 
transmission  of  such  substituted  record,  which  shall  be  in 
lieu  of  all  other  fees  for  making  a  return  on  such  appeal. 
By  consent  of  the  parties  or  on  order  of  the  trial  judge  or  of 
the  Supreme  Court,  any  original  document  shall  be  presented 
to  the  Supreme  Court  for  inspection  through  the  clerk  of  the 
lower  court  or  the  attorneys  in  the  cause.23 

While  the  language  of  this  rule  seems  to  be  broad  enough 
to  include  chancery  appeals,  there  may  be  a  serious  question 
whether  it  was  so  intended  or  can  be  so  applied.  The  author- 
ity of  the  Supreme  Court  to  prescribe  rules  of  practice  in 
the  circuit  courts  is  found  in  Section  Five  of  Article  Seven 
of  the  constitution,  as  follows:  "The  Supreme  Court  shall  by 
general  rules  establish,  modify  and  amend  the  practice  in 
such  court,  and  in  all  other  courts  of  record,  and  simplify 
the  same.''  It  is  a  question  whether  under  this  constitutional 
provision  and  statutory  enactments  the  Supreme  Court  can 
by  rule  modify  a  statutory  enactment  as  to  practice.24  The 
Judicature  Act  provides  that  in  all  chancery  appeals  the  origi- 
nal bill,  pleadings,  process,  etc.,  shall  be  returned  with  a 
chancery  appeaj.2r'  The  same  act  in  regard  to  the  authority 
of  the  Supreme  Court  to  prescribe  rules  of  practice  in  the 
circuit  courts  provides  that  uthe  Supreme  Court  shall  amongst 
other  things  regulate  and  prescribe  the  practice  therein,  and 
in  the  circuit  court  where  the  same  is  no,t  prescribed  by  any 
statute  in  relation  to  bills  of  exceptions,  cases  made  by  the 
parties,  special  verdicts,  granting  new  trials,  motions  in  arrest 
of  judgment,  taxation  of  costs,  giving  notice  "of  special  mo- 
tions and  of  such  other  proceedings  as  the  court  may  think 
propel-,  staying  proceedings  when  necessary  to  prevent  in- 
justice, and  the  hearing  of  motions,  imposing  terms  in  their 
discretion  on  granting  such  motions."-11  Section  Fourteen  of 
Chapter  One  of  the  .Judicature  Act  also  provides  that  "the 
justices  of  the  Supreme  Court  shall  have  power,  and  it  shall 
be  their  duty,  by  general  rules  to  establish  and  from  time,  to 

23.  C.   C.  Rules,  1916,  No.   68;  1915,  Act  No.  314,  Ch.  50,  Sec.  24, 
Cummins   &  Beecher's  Mich.  Rule  page   339;    Cummins   &   Beecher's 
Book,  page  659.  Mich.  Judicature  Act.  §1881- 

24.  Byrne    v.    Gypsum    Plaster  26.     C.  L.   1915.  J 12029 );    P.  A. 
&    Stucco   Co.,   141    Mich.    62,   104  1915,  Act  No.  314,  Ch.  1,  Sec.  24. 
N.  W.  R.  737.  page    7;     Cummins    &    Beecher's 

25.  C.  L.  1915,    (13759);   P.  A.  Mich.  Judicature  Act,  §191. 

.362 


I:XTI:\SIO\  or  TI.MI:  KOI:  MAKIM;  KK/ITRX 

tinir  thereafter  to  amend  the  practice  in  such  Court.  ;iinl  in 
;ill  other  courts  of  record,  ///  <-'/\r.v  nut  /trnritli  <l  lor  hi/  itnii 
xtittuti  ;  ;ui(l  they  shall  once  :il  least  in  every  two  years  there 
after,  if  necessary,  revise  tin-  said  rules,  with  the  view  to  the 
at  lainment.  so  fjir  ;is  may  be  pract  it-able,  of  the  following  im- 
provements in  tlie  pract  ice."  It  would  seem,  therefore,  that 
Supreme  Court  Uule  N<>.  US.  which  provides  for  the  return 
and  transmission  on  appeal  of  copies  or  abstracts  of  plead 
in«;s  and  process  instead  of  the  originals,  if  it  is  to  he  applied 
to  chancery  appeals,  is  in  direct  conflict  with  the  provisions 
of  the  .Judicature  Act,  which  require  the  originals  to  lie  re- 
turned to  the  Supreme  Court  in  all  chancery  appeals. 

§487.     Extension  of  Time  for  Making  Return. 

The  time  for  returning  the  record  to  the  Supreme  Court  in 
chancery  appeals  may  he  extended  l»y  one  of  the  justice*  <>! 
the  Supreme  Court,  or  a  circuit  jud.ue.  for  uood  cause  shown, 
and  any  order  -jjrantinj;  such  extension  must  lie  returned  with 
the  other  papers  to  the  clerk  of  the  Supreme  Court.-7  Notice 
of  the  time  and  place  of  making  application  for  such  ex- 
tension, together  with  .copies  of  the  affidavits  upon  which  the 
.•'pplication  is  based,  must  he  served  upon  the  adverse  party 
at  least  four  days  before  the  time  the  application  is  to  be 
made, 

All  appeals  are  statutory,  and.  in  the  absence  of  statutory 
authority,  no  rijjht  of  appeal  exists.-"  ft  is  a  remedy  which 
the  legislature  in  its  discretion  may  jjraut  or  take  away,  and 
it  may  prescribe  in  what  cases  and  under  what  conditions  or 
circumstances  appeals  may  be  faken  :  and  unless  the  statute 
expressly,  or  by  plain  implication,  provides  for  an  appeal 
from  a  judgment  of  a  court  <>f  inferior  jurisdiction,  none  can 
be  taken.  And  even  where  a  parly  has  a  clear  ri«;ht  to  appeal 
if  undertaken  within  the  time  ami  under  the  circumstances 
and  conditions  prescribed  by  the  statute,  such  conditions 
must  be  performed  within  the  time,  and  substantially  as  pre- 
scribed. It  follows,  therefore,  that  all  of  the  requirements 
of  the  statute  relating  to  appeals  are  jurisdictional  and  must 

27.     Supreme  Court   Rules.  No.  45  Mich  224.  7  N.  W.  R.  84,  762; 

16;    Cummins   &   Beecher's   Mich.  Tucker  v.  Stone,  92  Mi<h    298,  52 

Rule   Book,  page  511;   Waterman  N.  W.  R.  302;  Cameron  v.  Calkins, 

v.  Bailey,  111  Mich.  571,  69  N.  W.  43  Mich.  191.  5  N.  W:  R.  292. 
R.    1109;    Grand    Rapids   v.    C.   &          28.     Sullivan  v.  Haug,  82  Mich. 

W.    M.    R.    R.    Co..    95   Mich.    473,  555,  46  N.  W.  R.  795. 
58  N.  W.  R.  359;  Gram  v.  Wasey, 

363 


§488  APPEALS  TO  SUPREME  COURT 

be  substantially  complied  with.29  If  it  becomes  necessary  to 
have  an  extension  of  time  for  making  the  return  to  an  appeal, 
application  must  be  made  therefor  before  the  time  allowed  by 
the  statute  expires.  But  where,  owing  to  the  default  of  the 
court  or  its  officers,  the  perfecting  and  return  of  the  appeal 
has  not  been  seasonably  made,  such  appeal  will  not  be  dis- 
missed after  it  has  been  returned  to  the  Supreme  Court.30 

§488.    Motion  to  Dismiss. 

xlf  the  appellant  neglects  to  file  in  the  Supreme  Court  the 
record  and  proceedings  had  before  the  trial  court,  within  the 
time  prescribed  by  the  rules  of  court  and  the  statute,  the 
appellee  may  move  the  Supreme  Court  to  have  such  appeal 
entered  and  dismissed  for  want  of  prosecution;31  and  the 
court  may  grant  or  deny  such  motion  on  such  terms  and  con- 
ditions as  the  justice  of  the  case  may  require.32 

§489.     Service  of  Papers. 

All  notices  required  to  be  given  must  be  in  writing  and 
served  on  the  attorney  or  counsel  in  the  cause.  If  the  party 
is  also  an  attorney  and  prosecutes  in  person,  or  if  the  defend- 
ant gives  notice  that  he  is  an  attorney  and  will  defend  in  per- 
son, all  notices  and  other  papers  must  be  served  on  him  in 
like  manner.  Where  the  object  and  purpose  of  the  notice  is 
to  bring  the  party  into  contempt  of  court,  the  service  must 
be  on  the  party  personally,  unless  otherwise  directed  by  the 

Court.33 

. 

§490.     Notices — How  Served. 

Notices  and  papers  required  to  be  served  on  the  attorney  of 
one  of  the  parties  may  be  served  as  follows : 
i      (1)     By  delivering  them  to  him  personally; 

i  '2 1  P>y  leaving  the  same  in  his  office  with  his  clerk  or 
with  a  person  having  charge  of  such  office; 

29.  Portage    Lake    &    L.    S.    S.       N.  W.  R.  741. 

Canal  Co.  v.  Haas.  20  Mich.  326;  31.     Supreme    Court    Rule    No. 

Canfield  v.  Brigg  City  of  Erie,  21  8;    Cummins    &    Beecher's    Mich. 

Mich.    160;     People's    Ice    Co.    v.  Rule  Book,  page  506. 

Steamer   Excelsior,  43  Mich.   336,  32.    Supreme  Court  Rule  No.  9; 

5  N.  W.  R.  398.  Cummins  &  Beecher's  Mich.  Rule 

30.  Cameron     v.     Calkins,     43  Book,  page  506. 

Mich.  191,  5  N.  W.  R.  292;   Gram  33.     Supreme    Court    Rule    No. 

v.  Wasey,  45  Mich.  223,  7   N.  W.  21;    Cummins   &   Beecher's   Mich. 

R.  767;  Lake  Shore  &  M.  S.  R.  R.  Rule  Book,  page  513. 
Co.   v.   Chambers,   89   Mich.    5,   50 

364 


COURT    MAY    I'lUKi'T    AlANMIU    oF    SDUVICE  §492 

(3)  "When  IK»  person  is  to  be  found  in  his  otlice,  liy  leaving 
the  same  between  the  hours  of  six  in  the  morning  ;m<l  nine  in 
the  evening  in  some  suitable  and  conspicuous  place  in  such 
office ;  , 

ill  If  the  office  l»e  not  open  so  as  to  admit  of  service 
tlierein.  then  by  leaving  the  same  at  the  residence  of  the  at- 
torney with  some  person  of  suitable  age  and  discretion  : 

|."»i  liy  deposit  iu»-  the  same  in  the  post  office  inclosed  in 
a  sealed  envelope  plainly  addressed  to  such  attorney  at  his 
place  of  business  (according  to  the  best  possible  information 
and  belief  of  the  person  making  such  service)  with  the  postage 
thereon  fully  prepaid.  ' 

Service  by  mail  is  lawful  in  all  cases,  unless  the  statute  or 
rules  of  practice  require  personal  service,  but  in  all  cases  of 
service  by  mail  the  time  of  service  must  be  increased  one  day 
for  every  one  hundred  miles  distance,  or  fraction  thereof,  be- 
tween the  place  of  deposit  in  the  mail  and  the  place  of  ad 
dres- 

§491.     Computation  of  Time. 

The  rules  of  practice -provide  that  "the  day  on  which  any 
rule  shall  be  tiled,  order,  notice,  pleading,  or  paper  served, 
shall  lie  excluded  in  the  computation  of  time  for  complying 
\vilh  the  exigency  of  such  rule,  order,  notice,  pleading  or 
paper,  and  Hie  day  on  which  compliance  therewith  is  required 
shall  be  included,  except  where  it  shall  fall  on  Sunday,  in 
which  case  the  party  shall  have  the  next  day  to  comply  there- 
with. AVhen  by  the  terms  of  any  order  a  party  is  required  to 
perform  any  act  iustauter.  it  shall  be  done  within  twenty-four 
hoare 

§492.     Court  may  Direct  Manner  of  Service — When. 

"In  all  cases  where  service  of  papers  cannot  reasonably  be 
made  on  account  of  lack  of  an  attorney  of  record,  or  the  in- 
ability to  find  a  party,  or  on  account  of  the  absence  of  the 
attorney  of  record  from  his  usual  place  of  abode,  residence  or 

34.  Supreme    Court    Rule    No.  25;    Cummins   &   Beecher's   Mich. 
22;    Cummins   &   Beecher's   Mich.  Rule  Book,  page  514;   Vohlers  v. 
Rule  Book,  page  513.  Stafford    Mfg.   Co.,   171   Mich.   13, 

35.  Supreme    Court    Rule    No.  137    N.   W.   R.    131;    Moreland    v. 
23;  Cummins   &   Beecher's    Mich.  Circuit  Judge,  144  Mich.  331,  107 
Rule  Book,  page  514.  X.  W.  R.  873. 

36.  Supreme    Court    Rule    No. 


§493  APPEALS    TO    SUPKEIMK    COURT 

office,  or  toy  any  other  reason,  this  court,  or  one  of  the  jus- 
tices thereof,  upon  an  ex  parte  application,  on  cause  shown, 
may  direct  in  what  manner  and  upon  whom  service  shall  be 
made."37  > 

§493.    Practice  Relating  to  Motions. 

All  motions  and  affidavits  in  support  thereof  to  be  made  in 
the  Supreme  Court  must  be  typewritten  or  printed  and  filed 
with  the  clerk.  The  motion  must  contain  a  brief  statement 
of  the  object  and  grounds  of  the  same.  •  All  papers  tiled  by 
either  party  on  motions  must  contain  proof  of  service  of  the 
same  on  opposing-  counsel.  No  oral  arguments  will  be  heard 
on  motions  (except  where  constitutional  questions  are  in- 
volved) unless  by  special  permission  of  the  court  first  ob- 
tained. When  oral  arguments  are  permitted  they  will  be  lim- 
ited to  fifteen  minutes  on  each  side  unless  further  time  is 
granted  by  the  court  before  the  argument  is  commenced. :;s 

Notice  of  argument  of  motions,  together  with  copies  thereof 
and  of  the  affidavits  on  which  they  are  based,  must  be  served 
upon  the  opposing  attorney  at  least  four  days  before  the  time 
noticed  for  hearing  the  motion,  unless  the  opposing  attorney 
resides  outside  the  City  of  Lansing,  in  which  case  the  time  of 
service  must  be  increased  one  day  for  every  additional  one 
hundred  miles  or  fraction  thereof  between  his  place  of  resi- 
dence and  the  City  of  Lansing.39 

§494.     Motion  Days  and  Motion  Docket. 

The  motion  days  in  the  Supreme  Court  are  Tuesday  of  each 
week  during  the  term,  on  which  days  motions  will  have  prefer- 
ence over  calendar  causes,  and  all  special  motions  must  be 
noticed  for  one  of  these  days.  Motions  will  be  heard  on  the 
days  for  which  they  are  noticed  unless  adjourned  over  to  a 
subsequent  motion  day,  or  unless  there  is  not  time  to  hear  the 
same  on  the  day  for  which  they  are  noticed,  in  which  case 
they  will  be  heard  on  the  next  succeeding  day.40  Each  party 
is  required  to  submit  a  printed  or  type  written  brief  at  the 

37.  Supreme   Court    Rule    No.  39.     Supreme    Court    Rule    No. 
26;    Cummins   &    Beecher's   Mich.  28;    Cummins   &    Beecher's   Mich, 
Rule  Book,  page  515.  Rule  Book,  page  515. 

38.  Supreme    Court    Rule    No.  40.     Supreme    Court    Rule    No. 
27;    Cummins   &   Beecher's   Mich.  29;    Cummins   &   Beecher's   Mich. 
Rule  Book,  page  515.  Rule  Book,  page  516. 

366 


VI  [CB    OF    Ail', I    MKNT    ul-    CA! 


lime  motions  are  argued."  The  clerk  of  the  Supreme  Court 
i>  required  to  keep  :i  motion  docket.  :nnl  to  enter  therein 
motions  tiled  in  the  order  in  which  they  were  delivered  to  him. 
and  on  the  opening  of  court  on  motion  days  to  present  such 
docket  to  tin-  court.  Motions  will  he  called  in  the  order  in 
which  they  appear  on  the  docket.,  and  no  motion  will  he  en 
teriained  unless  brought  he  fore  the  court  in  the  manner  pro- 
vided for  by  the  rules  of  court. tj  The  time  limited  by  the 
rides  of  court  for  making  motions  or  applications,  or  giving 
any  notice,  or  taking  any  action,  may  be  shortened  or  ex- 
tended in  any  case  by  the  court  or  any  justice  thereof,  unless 
the  time  is  limited  by  statute."  No  private  agreement  or  con 
sent  between  the  parties  or  their  attorneys  in  regard  to  the 
proceedings  in  any  cause  will  be  recognized  by  the  court  as 
binding  unless  the  same  is  reduced  to  writing,  signed  by  the 
parly  or  his  attorney  against  whom  the  same  shall  be  allege. I. 
and  tiled  in  the  ollice-of  the  clerk  of  the  court." 


§495.     Notice  of  Argument  of  Causes. 

After  the  record  in  an  appeal  case  has  been  tiled  in  the  Su- 
preme Court  and  the  time  for  tiling  the  same  has  elapsed, 
either  party  may  notice  the  case  for  hearing.  Such  notice 
must  be  given  at  least  thirty  days  before  the  first  day  of  the 
term  at  which  the  argument  is  desired.47'  The  notice  of  hear- 
ing and  argument  must  he  served  on  the  attorney  for  the  op- 
posite party,  and  proof  of  such  service  by  affidavit  must  he 
made,  showing  the  time  and  manner  of  such  service,  and  such 
proof  of  service  must  be  tiled  in  the  olliee  of  the  Supreme 
Court. 

The  party  noticing  a  calendar  cause  for  hearing  must,  at 
least  twenty  days  before  the  tirst  day  of  the  term  for  which 
the  same  is  noticed,  give  notice  to  the  clerk  of  the  Supreme 
Court  to  place  the  cause  on  the  calendar  for  that  term.  The 
priority  of  causes  on  the  calendar  as  tirst  made  up  depends 


41.  Supreme    Court    Rule    No. 
20;    Cummins    &   Beecher's  Mich. 
Rule  Book,  page   516. 

42.  Supreme    Court    Rule    No. 
31 ;    Cummins   &   Beecher's   Mich. 
Rule  Book,  page  516. 

43.  Supreme    Court    Rule    No. 
32;    Cummins   &   Beecher's  'Mich. 
Rule  Book,  page  517. 


44.  Supreme    Court    Rule    No. 
33;    Cummins   &   Beecher's   Mich. 
Rule  Book,  page  517. 

45.  Supreme    Court    Rule    No. 
34;    Cummins   &   Beecher's   Mich. 
Rule    Book,    page    517;    Bryne   v. 
Gypsum  Plaster  &  Stucco  Co.,  141 
Mich.  62,  104  N.  W.  R.  410. 


367 


§49G  .  APPEALS  TO  SUPREME  COURT 

upon  the  date  of  filing  the  notice  of  hearing  with  the  clerk. 
No  cause  will  be  entered  on  the  calendar  nntil  the  record  on 
appeal  shall  have  been  filed  with  the  clerk,  nor  without  notice 
to  the  clerk  as  above  stated.  Causes  may  be  placed  lower 
down  on  the  calendar,  or  grouped  to  suit  the  convenience  of 
counsel,  by  filing  a  stipulation  to  that  effect  not  later  than  the 
Saturday  before  the  first  day  of  the  term.  After  the  calendar 
has  been  rearranged  by  the  clerk  no  further  change  can  be 
made  by  counsel,  except  to  continue  or  place  at  the  foot  of  the 
calendar.  In  cases  where  counsel  are  not  present  in  court, 
notice  of  motions  for  continuance  to  be  heard  on  the  first  da\ 
of  the  term  must  be  given  at  least  twenty-four  hours  previous 
thereto,  and  if  for  any  subsequent  day  two  days  notice  must 
be  given.46 

§496.    Record  to  be  Printed  and  Served. 

In  all  chancery  appeals  the  appellant  must  prepare  a  printed 
record  for  the  use  of  the  court,  which  is  required  to  contain 
all  of  the  testimony,  and  so  much  of  the  pleadings,  record  and 
proceedings  (and  no  more)  as  may  be  necessary  to  present  the 
questions  raised.  The  date  of  the  official  filing  of  each  plead- 
ing set  out  or  referred  to  in  the  record  must  be  stated.  All 
records,  arguments  and  briefs  printed  for  the  use  of  the  court 
must  be  in  small  pica  type,  twenty-four  pica  "ems"  to  the  line, 
thirty-five  lines  to  a  page,  leaded  with  four-to-pica  leads,  and 
printed  upon  un glazed  paper.  The  record  must  have  a  suit- 
able cover  containing  the  title  of  the  court  and  cause,  the  court 
from  which  the  case  is  appealed,  and  the  name  of  .the  judge 
before  whom  the  cause  was  heard.  The  size  of  all  printed 
records  and  briefs  must  be  nine  and  one  quarter  by  six  and 
one  quarter  inches.  Any  record  or  brief  which  fails  to  meet 
these  requirements  will  not  be  received  by  the  clerk.47  The 
record  must  contain  a  complete  index  of  the  names  of  the  wit- 
nesses whose  testimony  appears  therein,  and  a  reference  to  the 

46.  Supreme    Court    Rule    No.  Mich.  605,  119  N.  W.  R.  906;   En- 
44;    Cummins   &  Beecher's  Mich.  terprise     Foundry     Co.     v.     Iron 
Rule  Book,  page  525.  Moulders  Union,'  149  Mich.  32,  122 

47.  Supreme    Court    Rule    No.  N.  W.  R.  685.    A  decision  by  four 
35;    Cummins  &   Beecher's   Mich.  justices  of  the  Supreme  Court,  in 
Rule   Book,    page   518 ;    Dolph   v.  a  case  heard  by  seven,  establishes 
Norton,  158  Mich.  426,  123  N.  W.  the    law    of    the    case;    Dolph    v. 
R.  13;    In  re  Sullivan,  165  Mich.  Norton,  158  Mich.  417,  123  N.  W. 
588,  131  N.  W.  R.  180;  Bedard  v.  R.   13;    Weller   v.   Wheelock,    155 
Simons,  160  Mich.  547,  125  N.  W.  Mich.  698,  118  N.  W.  R.  609. 

R.  381;  Frolich  v.  Blackstock,  155 

368 


CONTKNTS     AMt     SKKVH'i:     or     I'.KIKIS  §497 

)>.-mes  whereon  the  examination,  cross  cxaminat ion  ;ui(l  re- 
direct examination  is  found;  also  the  pages  whereon  any 
exhibit  appcai-s.  and  in  Id-id'  form  the  substance  of  cadi  ex 
hihit.  The  index  must  he  printed  in  the  front  of  the.  record. 
No  record  will  he  received  by  the  clerk  which  does  not  contain 
an  index  arranged  snhstant  ially  as  above  required." 

In  all  chancery  appeals  the  appellant  is  required  to  cause 
the  record  to  he  printed  as  soon  as  pract icable  after  the  filing 
of  the  return  in  the  oflice  of  the  clerk  of  the  Supreme  Court, 
and  as  soon  as  the  printing  is  completed  to  serve  at  least  two 
copies  of  the  same  upon  counsel  for  the  appellee;  and  before 
the  first  day  of  the  term  at  which  the  cause  is  noticed  for 
argument  he  must  tile  with  the  clerk  of  the  Supreme  Court  at 
least  eighteen  printed  copies  thereof.  In  all  cases  the  appel- 
lant must  serve  the  printed  record  on  counsel  for  the  appellee 
within  thirty  days  after  the  filing  of  the  return  in  the  Supreme 
Court,  and  within  the  time  allowed  hy  rule  for  the  service  of 
the  first  brief,  unless  further  time  therefor  shall  be  granted. 
This  provision  does  not  give  the  appellant  thirty  days  in  every 
case,  but  only  so  much  time  as  is  reasonably  necessary  after 
the  tiling  of  the  return  in  the  Supreme  Court.  If  the  appellant 
fails-  to  print  and  serve  the  record  within  the  time  as  above 
stated,  or  within  such  further  time  as  may  be  granted  on 
motion,  the  court  may,  on  motion  of  the  appellee,  dismiss  the 
case  and  award  costs  to  the  appellee,  or  grant  further  time  for 
compliance  with  such  requirements  on  such  terms  as  shall  be 
proper.  If  the  appellant,  fails  to  have  the  printed  record  filed 
before  the  first  day  of  the  term  for  which  the  cause  is  regularly 
noticed  for  argument,  the  cause  will  be  stricken  from  tin- 
calendar  on  the  first  day  of  the  term,  and  may  be  further 
dealt  with  as  justice  may  require.49 

§497.     Contents  and  Service  of  Briefs. 

Briefs  must  be  printed  in  the  same  kind  of  type  and  must 
be  of  the  same  size  as  the  record.  The  brief  of  the  appellant, 
if  he  is  also  the  plaintiff,  must  contain  a  clear  and  concise 
statement  of  the  facts  of  the  case,  distinct  from  argument,  and 
the  questions  involved  and  the  manner  in  which  they  are 
raised.  The  court  will  consider  such  statement  sufficient  and 

48.  Supreme  Court  Rule  No.  49.  Supreme  Court  Rule  No. 
36;  Cummins  &  Beecher's  Mich.  38;  Cummins  &  Beecher's  Mich. 
Rule  Book,  page  518.  Rule  Book,  page  519. 

369 


APPEALS    TO    SUPREME    COURT 

accurate  unless  the  opposite  party  sliall  point  out  in  his  brief 
wherein  such  statement  is  insufficient  or  inaccurate.50 

After  a  hearing  and  decree  in  a  chancery  case  it  is  the  duty 
of  the  plaintiff  to  furnish  the  Supreme  Court  with  the  first 
brief,  no  matter  which  party  appeals.51 

If  the  defendant's  brief  points  out  no  error  or  insufficiency 
in  the  statement  of  facts  contained  in  the  plaintiff's  brief,  but 
contains  an  entirely  distinct  statement  of  facts  in  disregard 
of  this  rule,  the  Court  will  accept  the  statement  as  contained 
in  the  plaintiffs  brief  and  consider  only  the  questions  raised 
thereby.52 

As  a  matter  of  convenience  to  the  court  and  counsel,  any 
alleged  inaccuracy  or  insufficiency  in  the  plaintiffs  statement 
of  facts  should  appear  in  the  beginning  of  the  plaintiffs  brief.53 
The  purpose  and  object  of  requiring  a  statement  of  facts,  of 
the  questions  involved,  and  of  the  manner  in  which  they  are 
raised  to  be  clearly  and  concisely  set  out  in  the  plaintiff's 
brief,  is  to  save  the  court  the* time  of  going  through  voluminous 
records  to  ascertain  the  questions  which  it  is  required  to  pass 
upon  in  the  controversy,  and  the  rule  should  be  strictly  and 
conscientiously  followed  and  complied  with.54 

Counsel  for  the  defendant  should  in  all  cases  carefully  ex- 
amine the  statement  of  facts  contained  in  the  plaintiffs  brief 
in  connection  with  the  record,  and  if  found  to  be  incorrect  or 
insufficient  in  any  material  particular,  the  precise  error  or 
insufficiency  should  be  pointed  out,  and  the  correction  made 
or  the  deficiency  supplied,  with  a  reference  to  the  part  of  the 
record  sustaining  his  statement.55 

*50.     Supreme    Court    Rule    No.  Rule  Book,   page  521.     This  rule 

40;    Cummins   &   Beecher's   Mich.  is   the  same  as  former   Rule  No. 

Rule  Book,  page  521.  61,  which  has  been  cited  or  con- 

51.  Pinel    v.    Pinel,    172    Mich.  strued    in    the    following    cases: 
611,   146  N.  W.  R.  117;    Chase  v.  Schulte   v.    Kelly,    124   Mich.    330, 
Michigan     United     Ry.     Co.,     165  83  N.  W.  R.  405;  People  v.  Jamie- 
Mich.  493,  131  N.  W.  R.  118.  son,   124   Mich.    164,   82   N.   W.   R. 

52.  Haden  v.  Closser,  153  Mich.  835;  Shinglemeyer  v.  Wright,  124 
183,  116  N.  W.  R.  1001.  Mich.  230,  82  N. 'W.  R.  887;   Car- 

53.  Monger,  v.   New  Era  Asso-  mer   v.    Hubbard,    123   Mich.    333, 
elation,  145  Mich.  685,  108  N.  W.  82  N.  W.  R.  64;  Gerardo  v.  Brush, 
R.  1111;   Shinglemeyer  v.  Wright,  120  Mich.  405,  79   N.  W.  R.   646; 
124   Mich.   238,   82   N.  W.   R.    887,  Webber   v.    Hayes,   117   Mich   256, 
50  L.  R.  A.  129.  75  N.  W.  R.  622;  Hoffman  v.  Pack, 

54.  Ferguson    v.    Wilson,     122  114  Mich,  page  1,  67  N.  W.  R.  118; 
Mich.  98,  80  N.  W.  R.  1006.  French  v.  Ryan,  104  Mich.  625,  62 

55.  Supreme    Court    Rule    No.  N.    W.    R.    1016;    Zimmerman    v. 
40;    Cummins   &    Beecher's   Mich.  Dolph,  104  Mich.  282,  62  N.  W.  R. 

> 
370 


\\i>    si:i:\  in:    n\-    r.uii:rs 


T\v<>  copies  of  the  appellant's  111  id'  linisl  he  served  upon  the 
;ippellee  ;is  soon  ;is  printed.  ;ind  :it  le;ist  twenty  days  hefore 
llie  tirst  day  of  the  term  at  which  the  cause  is  regularly  noticed 
I'm-  hearing-  Two  copies  of  the  appellee's  hrief  must  he  serveil 
upon  appellant's  counsel  as  soon  as  printed,  and  at  le;ist  live 
days  hefore  the  lirst  day  of  the  term  at  which  the  cause  is 
regularly  noticed  for  hearing;  hnt  if  the  printed  record  and 
appellant's  hrief  shall  he  served  thirty  days  hefore  the  term. 
the  appellee's  hrief  must,  in  such  case,  he  served  at  least  lifteen 
days  hefore  the  lirst  day  of  the  term.  The  foregoing  provisions 
apply  in  chancery  appeals  where  the  plaintilV  is  also  appellant, 
or  when  the  defendant  appeals  from  an  order  overruling  or 
denying  a  motion  to  dismiss.  In  other  chancery  cases  heard 
on  pleadings  or  on  pleadings  and  proofs,  when  the  plaintiff  is 
appellee,  his  hrief  must  he  served  upon  the  defendant  at  least 
lifleen  days  hefore  the  lirst  day  of  the  term  at  which  the  cause 
is  regularly  noticed  for  hearing  KM-  within  ten  days  after 
service  (if  the  printed  record  hy  appellant,  if  the  same  is  not 
served  at  least  twenty  live  days  hefore  the  tirst  day  of  the 
ierini:  and  the  appellant's  hrief  must  he  served  at  leas!  live 
(lays  hefore  the  lirst  day  of  the  term  i  or  within  ten  days  after 
service  of  the  plaintiff's  hrief. 

The  tirst  hriefs  are  expected  to  fully  and  fairly  present  tin- 
case  on  each  side,  and  supplemental  hriefs  may  he  printed  and 
served  at  any  time  hefore  the  cause  is  placed  upon  the  call  for 
argument,  hut  suhsequently  hy  permission  of  the  court  only. 
It  is  not  uood  practice,  and  the  court  will  he  likely  to  dis- 
approve it.  to  present  the  cause  only  partially  in  the  lirst  hrief. 
to  he  more  fully  presented  in  a  supplemental  hrief  after  having 
received  the  hrief  of  the  other  party.  The  lirst  hrief  of  either 
party  should  present  his  view  of  the  case-  fully  and  completely. 
and  a  supplemental  hrief  should  he  employed  only  to  anv\\«  i 
that  which  has  heen  presented  hy  the  hrief  of  the  opposite 
party. 

If  the  hrief  of  either  party  is  not  served  within  the  time 
ahove  mentioned,  the  opposite  party,  on  the  lirsl  day  of  the 

339;  Mason  v.  Partrick,  100  Mich.  R.  788;  Sullivan  v.  Hall.  86  Mich. 

580.  59    N.  W.  R.  239;    Dake  En-  7,  48  N.  W.  R.  646;  Black  v.  Daw- 

gine  Mfg.  Co.  v.  Hurley,  99  Mich.  son,   82   Mich.   485,   46   N.    W.   R. 

19,  57   N.  W.  R.   1044;    Graves  v.  793;    St.  James    v.    Erskine,    155 

Battle  Creek,  95  Mich.  266,  54  N.  Mich.  606,  119  N.  W.  R.  897;  Car- 

W.  R.   757;    Lynch   v.  Craney,  95  mer   v.    Hubbard,    123   Mich,    333, 

Mich.  200,  54  N.  W.  R.  879;  Busch  82  N.  W.  R.  64. 
v.  Fisher,  89  Mich.  .193,  50  N.  W. 

371 


5498 


APPEALS    TO    SUI'BEME    COURT 


term,  may  at  his  option  have  the  cause  placed  at  the  foot  of 
the  calendar,  or  continued,  and  the  court  in  proper  cases  may 
order  the  payment  of  a  counsel  fee  by  the  party  in  default.56 
Eighteen  copies  of  the  brief  for  each  party  must  be  filed  with 
the  clerk  of  the  Supreme  Court  at  least  forty-eight  hours  before 
the  case  is  placed  on  call.  No  oral  argument  will  be  allowed  a 
party  who  has  failed  to  comply  with  this  provision.07 

§498.     Call  of  Cases  and  Argument. 

On  the  first  day  of  thfe  term  the  first  business  transacted  is 
usually  hearing1  and  disposition  of  motions.  After  motions 
are  disposed  of  the  court  will  begin  the  calling  of  the  calendar 
cases  for  argument  in  the  order  in  which  they  stand  on  the  re- 
arranged calendar,  and  proceed  in  the  same  order  from  day  to 
day,  and  if  the  parties  or  either  of  them  are  ready  for  argu-, 
ment  when  the  case  is  called  the  same  will  be  heard.  If  neither 
party  is  ready  to  proceed  with  the  argument  the  cause  will  be 
regarded  as  submitted  on  briefs.  •  After  a  cause  has  been 
placed  on  call  it  cannot  be  withdrawn,  .except  to  continue  the 
same,  and  a  continuance  will  be  granted  only  upon  a  sufficient 
showing  of  the  death  or  illness  of  counsel.  Fifteen  cases  are 
liable  to  be  placed  on  call  each  day  during  the  term.  No  cause 
will  be  taken  up  out  of  its  order  or  set  down  for  a  day  certain, 
except  under  special  and  peculiar  circumstances  to  be  shown 
to  the  court.  On  motion  days  motions  take  precedence  over 
calendar  causes.58 

While  as  a  general  rule  the  court  will  not  consider  and  pass 
upon  a  question  on  appeal  which  was  not  presented  or  raised 
in  the  lower  court,  still,  in  the  exercise  of  its  appellate  juris- 
diction, the  court  may,  and  sometimes  does,  direct  the  atten- 
tion of  counsel  to  questions  it  deems  material  to  a  just  and 
equitable  disposition  of  the  case,  and  request  argument  of 
counsel  thereon,  although  such  questions  were  not  raised  or 
argued  by  counsel  in  the  lower  court  on  the  trial.59 


56.  Supreme    Court    Rule    No. 
41;    Cummins  &  Beecher's    Mich. 
Rule  Book,  page  523. 

57.  Supreme    Court    Rule    No. 
42;    Cummins   &   Beecher's   Mich. 
Rule  Book,  page  524. 

58.  Supreme    Court    Rule    No. 
45;    Cummins    &   Beecher's   Mich. 
Rule  Book,  page  526.  - 

59.  C.  L.  1915,    (12016);   P.  A. 


1915,  Act  No.  314,  Ch.  1,  Sec.  11, 
page  5;  Cummins  &  Beecher's 
Mich.  Judicature  Act,  §178;  Gadd 
v.  City  of  Detroit,  142  Mich.  685, 
106  N.  W.  R.  210;  Auditor  Gen- 
eral v.  Bolt,  147  Mich.  286,  111  N. 
W.  R.  74;  C.  L.  1915,  (12010);  P. 
A.  1915,  Act  No.  314,  Ch.  1,  Sec.  5, 
page  4;  Cummins  &  Beecher's 
Mich.  Judicature  Act,  §172. 


372 


TAXATI'iX    t>l-    COSTS  i  I'.l'.t 

The  inn-lies  :irc  entitled  to  ;in  oi-;il  argument  in  :ill  calendar 
causes  :iinl  iipmi  all  motions  involving  const  itui  ional  qites- 
liolis.  Two  eollliscl  on  each  side  may  be  lieai'il  ill  llie  oral  ar- 
gument of  calendar  causes.  The  time  allowed  for  oral  argu- 
ment in  causes  involving  live  hundred  dollars  or  less  is  not 
more  than  one  halt  hour  on  each  side.  In  all  other  calendar 
causes  the  t  ime  allowed  will  not  exceed  one  hour  on  each  side. 
The  time  for  argument  may  he  extended  by  the  court,  upon  ap 
plication  granted  before  the  argument  is  commenced.'1"  Any 
cause  may  be  submitted  upon  briefs  at  any  time.111 

§499.    Taxation  of  Costs. 

The  necessary  expense  of  printing  the  record  anil  briefs  re 
quired  by  the  rules  of  practice  may  lie  taxed  as  disbursements 
in  favor  of  the  parly  prevailing  in  the  cause.02  If  the  appel- 
lant prevails  in  the  Supreme  Court,  he  is  also  entitled  to  tax 
as  costs  the -sum  of  five  dollars  paid  to  the  clerk  of  UK-  circui' 
court  for  the  return,  and  the  sum  of  six  dollars  paid  the  clerk 
of  the  Supreme  Court  for  the  entry  fee  in  that  court. 

A  counsel  fee  will  be  awarded  the  prevailing  party  in  the 
Supreme  Court,  unless  otherwise  ordered,  in  addition  to  such 
other  costs  as  he  may  be  entitled  to,  as  follows:  On  motions 
which  do  not  linally  dispose  of  the  case,  ten  dollars;  on  man- 
damus and  certiorari  heard  as  motions,  fifteen  dollars;  on  mo- 
tions which  linally  dispose  of  the  case,  twenty  dollars;  on  cal- 
endar causes,  thirty  dollars.63 

The  costs  will  be  taxed  by  the  clerk  of  the  Supreme  Court 
on  notice  of  not  less  than  four  days.  If  the  party  upon  whom 
such  notice  is  to  be  served  resides  outside  the  City  of  Lansing, 
the  time  of  serving  a  notice  of  taxation  of  costs  must  be  one 
day  for  every  additional  one  hundred  miles,  or  fraction  there 
of.  between  his  place  of  residence  and  the  City  of  Lansing, 
but  no  not  ire  of  more  than  ten  days  need  be  ^ivcii.  The  notice 
must  be  accompanied  by  a  copy  of  the  bill  proposed  to  be 

60.  Supreme    Court    Rule  *No.  County  Treasurer,  8  Mich.  392. 
46;    Cummins  &   Beecher's   Mich.  62.     Supreme    Court    Rule    Xo. 
Rule  Book,  page  526.  48;    Cummins  &   Beecher's   Mich. 

61.  Supreme    Court    Rule    No.  Rule  Book,  page  527. 

47:    Cummins  &  Beecher's    Mich.  63.     Supreme    Court    Rule    Xo. 

Rule  Book,  page  527;  Harrington  49;    Cummins   &   Beecher's   Mii-h. 

v.   Wands,   23  Mich.  385;    Detroit  Rule  Book,  page  528. 
Board    of    Education    v.    Wayne 

373 


APPEALS    TO    SUPUKME    COT'RT 


taxed,  aiul  the  affidavit  of  disbursements  proposed  to  be  read 
in  support  thereof.  The  notice  may  be  served  by  mail,  and 
the  time  and  manner  of  service  must  be  shown  by  the  affidavit 
of  the  person  making  the  same.64 


64,  Supreme  Court.  Rule  No. 
50;  Cummins  &  Beecher's  Mich. 
Rule  Book,  page  528.  The  ques- 
tions involved  in  the  Rules  in  re- 
lation to  the  award  and  taxation 
of  costs  are  passed  upon  in  the 
following  cases:  Lester  v.  Sut- 
ton,  7  Mich.  329;  Wilson  v.  Wil- 
son, 6  Mich.  272; 'holding  that  in 
preparing  a  case  for  argument  in 
the  Supreme  Court  on  a  chancery 
appeal,  counsel  must  exercise 
their  own  judgment  and  discre- 
tion as  to  whether  they  will  print 
the  whole  evidence,  or  omit  the 
formal  and,  what  may  be  deemed, 
the  unimportant  portions;  and 
the  court  on  taxation  of  costs 
will  not  interfere  with  the  exer- 
cise of  such  discretion  unless  it 
clearly  appears  to  have  been 
abused.  •  McCurdy  v.  Clark,  27 
Mich.  445;  Whiting  v.  Butler,  29 
Mich.  122;  Adams  v.  Champion, 
31  Mich.  233;  Crittenden  v. 
Schermerhorn,  35  Mich.  370; 
Howe  v.  Lemon,  37  Mich.  164; 
Fredenburg  v.  Turner,  37  Mich. 
402;  Sager  v.  Tupper,  38  Mich. 
259;  Barnard  v.  Colwell,  39  Mich. 
215;  Brown  v.  Blanchard,  40 
Mich.  61 ;  VanDeusen  v.  New- 
comer, 40  Mich.  525;  Michigan 
Mutual  Life  Ins.  Co.  v.  Conant, 
40  Mich.  530;  Evans  v.  Suther- 
land, 41  Mich.  177;  1  N.  W.  R. 
927;  Stebbins  v.  Field,  41  Mich. 
373,  2  N.  W.  R.  190;  Arnold  v. 
Bright,  41  Mich.  416,  2  N.  W.  R. 
16;  Maxwell  v.  Bay  City  Bridge 
Co.,  42  Mich.  67,  51  N.  W.  R. 
963;  Clark  v.  Sable,  44  Mich.  1; 
Ludington  y.  Melendy,  44  Mich. 
560,  7  N.  W.  R.  240;  Wright  v. 
Smith,  44  Mich.  560,  7  N.  W.  R. 
240;  Dickinson  v.  Seaver,  44  Mich. 


633,  7  N.  W.  R.  182:  Engle  v. 
Hall,  45  Mich.  57,  7  N.  W.  R.,  239; 
Demill  v.  Moffat,  45  Mich.  410.  8 
N.  W.  R.  79;  Watts  v.  Tittaba- 
wassee  Boom  Co.,  47  Mich.  540, 
11  N.  W.  R.  377;  Bates  v.  Desen- 
berg,  47  Mich.  643.  A  charge  for 

,  obtaining  a  copy  of  the  record  for 
the  printer  is  a  proper  item  in  • 
taxing  costs.  Botsford  v.  Murphy, 
48  Mich.  642;  Wildey  v.  Farmers' 
Mutual  Fjre  Ins.  Co.,  49  Mich. 
264,  13  N.  W.  R.  583;  Johnson  v. 
Rose,  50  Mich.  334,  15  N.  W.  R. 
497;  Rice  v.  Rice,  50  Mich.  448, 
15  N.  W.  R.  545;  McKenna  v. 
Kirkwood,  50  Mich.  5.44,  15  N.  W. 
R.  898;  Erickson  v.  Mich.  Land  & 

*  Iron  Co.,  50  Mich.  604,  16  N.  W. 
R.  161;  Port  Huron  v.  Chadwick, 
52  Mich.  320,  17  N.  W.  R.  929; 
Clark  v.  Wiles,  54  Mich.  324,  20  ' 
N.  W.  R.  63;  Case  v.  Dewey,  55 
Mich.  117,  20  N.  W.  R.  21,  911; 
.Singer  Mfg.  Co.  v.  Benjamin,  55 
Mich.  330,  21  N.  W.  R.  358;  New- 
kirk  v.  Newkirk,  56  Mich.  525,  23 
N.  W.  R.  206;  Wilson  v.  Pontiac, 
O.  &  P.  A.  R.  Co.,  57  Mich  155, 
23  N.  W.  R.  627;  See  v.  Derr,  57 
Mich.  369,  24  N.  W.  R.  108.  Costs 
were  withheld  where,  on  review, 
the  court  was  equally  divided. 
Benedict  v.  Crookshank,  58  Mich. 
107,  24  N.  W.  R.  795;  Jeffery 
v.  Hursh,  58  Mich.  247,  25  N.  W. 
R.  176;  Smith's  Estate,  60  Mich. 
136,  27  N.  W.  R.  80;  Thurstin  v. 
Luce,  61  Mich.  486  &  292,  28  N. 
W.  R.  103;  Dayton  v.  Dayton,  68 
Mich.  437,  36  N.  W.  R.  209;  New 
Home  Sewing  Machine  Co.  v. 
Bothane,  70  Mich.  443,  38  N.  W.  R. 
326;  Chadwick  v.  Walsh,  70  Mich. 
627,  38  N.  W.  R.  602;  Hilliker  v. 
Coleman,  73  Mich.  170,  41  N.  W. 


374 


i-oi;  KKMKAUIM; — COSTS 

$500.     Application  For  Rehearing— Costs. 

Whenever  a  cause  is  heard  by  ;i  (|u<innn  of  live  justices  only. 
:in<l  a  dissenting;  opinion  is  lilecl,  the  parlies  Imve  ;i  right  to  ;i 
rehearing  before  the  full  bench.  Upon  making  ;i  proper  applica- 
lion  therefor. 

In  other  cases  rehea  rings  ;ire  largely  in  tlie  discretion  of  tlie 
court,  ;iml  will  l>e  granted  only  where  it  is  ele;ii-ly  shown  tjiat 
there  is  some  mistake  or  error  in  the  decision  of  the  court. 

In  all  applications  for  rehearing,  whether  hy  reason  of  Iheiv 
having  been  a  dissenting  opinion  tiled  in  a  cause  which  was 
heard  by  a  quorum  of  live  justices  only  or  for  any  other  rea- 
son, 11u«  moving  party  must,  at  as  early  a  date  as  may  be  prac- 
ticable, cause  any  and  all  papers  upon  which  s'uch  application 
is  based,  together  with  his*  reasons  for  granting  the  same,  in 
lie  printed  and  twelve  copies  thereof  to  be  tiled  with  the  clerk 
of  the  Supreme  Court,  and  a  copy  of  the  same  to  be  served  up- 
on counsel  for  the  opposite  party:  and  no  such  application 
will  be  considered  by  the  court  unless  the  foregoing  provisions 
are  complied  with.  I 'roof  of  such  service  must  also  be  tiled 
with  the  clerk  of  the  Supreme  Court.  After  the  expiration  of 
not  less  than  four  days  after  such  service  the  court  will  ex- 
amine the  papers  and,  without  further  argument,  unless  spe 
cially  ordered,  will  pass  upon  the  application.  The  party  op- 
posing the  application  may  tile  with  the  clerk  his  objections 
thereto,  either  printed  or  typewritten  as  he  may  prefer,  at  any 
time  before  the  application  is  decided.  If  the  application  is 

denied  the  opposing  party  will  be  entitled  to  tax  a  motion  fee 

• 

R.  216;  Bourgette  v.  Williams,  73  Shanahan.  93  Mich.  486,  53  N.  W. 
Mich.  208.  41  N.  W.  R.  229,  Snell  R.  624;  Sanford  v.  Rowley.  93 
v.  Race,  78  Mich.  334,  44  N.  W.  Mich.  509,  52  N.  W.  R.  1119; 
R.  286;  Maltby  v.  Plummer.  73  Maxted  v.  Fowler,  94  Mich.  107, 
Midi.  539,  41  N.  W.  R.  683;  Kent  53  N.  W.  R.  921;  Rayl.  v.  Ham- 
County  Agricultural  Society  v.  mond's  Estate,  95  Mich.  22,  54  N. 
Houseman,  81  Mich.  609,  46  N.  W.  W.  R.  693;  Turner  v.  Muskegon 
R.  l.r>;  Thayer  v.  Grand  Rapids,  Machine  &  Foundry  Co..  97  Mich. 
82  Mich.  298.  46  N.  W.  R.  228;  177.  56  N.  W.  R.  356;  Wheeler  v. 
Lambert  v.  Weber,  83  Mich.  395,  Meyer,  101  Mich.  465,  59  N.  W. 
47  X.  W.  R.  251;  Muskegon  v  R.  811;  Roby  v.  Gray.  73  Mich. 
Martin  Lumber  Co.,  86  Mich.  625.  363.  42  N.  W.  R.  839. 
49  N.  W.  R.  489;  DeLong  v.  65.  C.  L.  1915.  (12010);  P.  A. 
Muskegon  Booming  Co.,  88  Mich.  1915.  Act  No.  314,  Ch.  1.  Sec.  5. 
282.  50  N.  W.  R.  297;  Hall  v.  page  4:  Cummins  &  Beeclu-r's 
Concordia  Fire  Ins.  Co..  90  Mich.  Mich.  Judicature  Act,  §171'. 
403.  51  N.  W.  R.  524;  Davison  v. 

375 


5500 


APPEALS  TO  SUPREME  COURT 


of  fifteen  dollars  and  the  expense  of  printing  a  brief  if  one  has 
been  furnished.66 


66.  Supreme  Court  Rule  No. 
51;  Cummins  &  Beecher's  Mich. 
Rule  Book,  page  528.  An  appli- 
cation for  a  re-hearing  based  upon 
a  showing  of  facts  already  upon 
the  record,  or  that  would  not  ma- 
terially alter  or  add  to  the  case 
made  on  the  first  hearing,  will  be 
denied;  Taylor  v.  Boardman,  24 
Mich.  287.  The  questions  relating 
to  the  practice  in  the  Supreme 
Court  under  this  Rule,  relating  to 
re-hearings,  are  .passed  upon  or 
referred  to  in  the  following 
cases:  Adams  v.  Field,  25  Mich. 
16;  Case  v.  Case,  26  Mich.  493; 
Hutchins  v.  Kimmell,  31  Mich. 
127;  Detroit  Savings  Bank  v. 
Truesdail,  38  Mich.  431;  Vanneter 
v.  Crossman,  39  Mich.  611; 
Thompson  v.  Denison,  40  Mich. 
526;  Kraft  v.  Raths,  45  Mich.  21; 
Peoples  v.  Evening  News  Associa- 
tion, 51  Mich.  21,  16  N.  W.  R. 
185;  Maclean  v.  Soripps,  52  Mich. 
256,  17  N.  W.  R.  815;  Reeg  v. 
Burnham,  55  Mich.  56,  20  N.  W. 
R.  708,  21  N.  W.  R.  431;  Morgan 
v.  Michigan  Air  Line  R.  Co.,  57 
Mich.  456,  25  N.  W.  R.  161,  26 
N.  W.  R.  865;  Smith  v.  Walker, 
57  Mich.  484,  22  N.  W.  R.  267,  24 
N.  W.  R.  830,  26  N.  W.  R.  783; 


Johnston  v.  Davis,  61  Mich.  278, 
28  N.  W.  R.  98;  Rossman  v.  Ross- 
man,  62  Mich.  439,  29  N.  W.  R. 
33;  Brown  v.  Brown,  64  Mich.  83, 
32  N.  W.  R.  633;  Cobbs  v.  Fire 
Association,  68  Mich.  465,  36  N. 
W.  R.  222;  Auditor  General  v. 
Hill,  98  Mich.  329,  57  N.  W.  R. 
168;  Sherwood  v.  Central  Mich. 
Savings  Bank,  104  Mich.  65,  62  N. 
W.  R.  294;  McDonald  v.  McKin- 
non,  104  Mich.  429,  62  N.  W.  R. 
560;  John  Hutchison  Mfg.  Co.  v. 
Pinch,  107  Mich.  12,  64  N.  W.  R. 
729,  66  N.  W.  R.  340;  Ewing  v. 
Ainger,  97  Mich.  381,  56  N.  W.  R. 
767.  A  re-hearing  on  the  same 
facts  and  legal  controversy  is  not 
usually  granted  unless  there  has 
been  some  very  peculiar  assump- 
tion or  defect  on  the  first  hearing 
by  which  the  court  and  parties 
have  been*  misled,  and  the  case 
must  be  an  extraordinary  one  in 
which  the  appellate  court  will  re- 
voke its  decision  on  any  other 
grounds.  Counsel  are  expected 
to  present  in  one  argument  what- 
ever there  is  to  be  presented; 
and  the  court  will  act  on  the 
whole  record,  or  so  much  of  it  as 
is  material.  Brown  v.  Brown,  64 
Mich.  82,  31  N.  W.  R.  34. 


376 


TART  FIVE. 
FORMS   IX  DIVORCE  PKOCEDUIJi:. 


PART  FIVE— FORMS  IX  DIVORCE  PROCEDURE. 

-• 

No.     1.     Bill  of  Complaint  for  Adultery,  General  Form. 

No.     2.     Bill  for  Divorce  by  Wife — Adultery. 

No.     3.     Bill  for  Divorce — Physical  Incapacity. 

No.     4.     Bill  for  Divorce,  Charging  Desertion. 

No.     ~)f    Bill  Alleging  Desertion. 

No.     <!.     Bill  for  Divorce,  Charging  Extreme  Cruelty,  and  Ask- 
ing for  Alimony  and  Custody  of  Children. 

Xo.     7.     Bill  for  Divorce  by  AVife,  Charging  Habitual  Drunk- 
enness. 

Xo.     S.     Bill  for  Divorce  From  Bed  and  Board.    - 

Xo.     J).     Bill  'for   Divorce  Charging  Conviction   of    a   Felony 
and  Sentence  to  the  State  Prison  for  Three  Years. 

Xo.  10.     Bill  for  Divorce  Procured  by  Defendant  in  Another 
State. 

Xo.  11.     Bill  by  AA'ife  for  Refusal  to  Support. 

Xo.  12.     Bill  to  Annul  Marriage. 

Xo.  i:j.     Bill  to  Affirm  Marriage. 

Xo.  14.     Chancery  Summons. 

Xo.  1.").     Affidavit  for  Order  of  Publication — Non-resident  De-        . 
fendant. 

No.  .HI.     Affidavit    for   Order   of   Publication    AVhen    Process 
Cannot  be  Served. 

Xo.  IT.     Order  of  Publication — Xon-resident  Defendant. 

Xo.  18.     Order    of    Publication — Defendant's    Residence    Un- 
known. 

Xo.  1!).     Order  of  Publication — Defendant  Concealed. 

Xo.  20.     Notice  of  Appearance  of  Defendant. 
'    No.  21.     Motion  to  Dismiss. 

No.  22.     Order  Pro  Confesso,  for  not  Appearing. 

Xo.  2:>.     Order  Pro  Confesso  for  not  Answering. 

Xo.  24.     Order  Pro  Confesso,  Defendant  Brought  in  by  Publi-   ( 

cation. 
4  No.  2.").    Affidavit  of  NOD- Appearance. 

Xo.  2<J.     Affidavit  of  Default  for  Want  of  Answer. 

Xo.  27.     Supplemental  Bill. 

No.  28.     Petition  for  Leave  to  File  Supplemental  Bill. 

No.  2!).     Notice  of  Application. 

No.  2!)a.  Order  Gnmting  Leave  to  File  Supplemental  Bill. 

Xo.  .'!().     Answer- — General  FornT: 

378 


. 


ANALYSIS 

\(».  .'!!.     Answer  and  Cross-Hill. 

No.  :'•-.      Petition    I'or    Reference   to   a'  Commissioner    to   Take 
Proofs, 

No.   .'!•'!.      Order  of    Reference   to  Take   I 'roof's.  j 

No.  .".I.      Notice  of  Taking  I'r<io|'s  P.ei'ore  Commissioner. 

No.  ."..">.     Order  (irantinjr  -Motion  to  Dismiss  Hill. 

No.  :!»'».      Report  of  Circuit  Court  Commissioner  :is  to  Alimony. 

No.  '.\~.     Order  Continuing  Report  of  Commissioner. 

No.  :ts.      Petition    for   Temporary   Alimony    ;ind    Expenses    l>\ 

Plaintiff. 

No.  :!!».      Petition  for  Alimony  ;ind  Kxpenses  l»y  Defendant. 
No.   io.    Order  Allowing  Temporary  Alimdhy  and  Kxpenses  to 

Plaintiff. 

\o.    M.     Order  for  Alimony  and   Expenses  to  Defendant. 
No.   ii'.     Order  Denying  Temporary  Alimony. 
No.    i:i.      Demand  for  Payment  of  Temporary  Alimony. 
No.  -Jl.     Affidavit   to  Olitain  an  Attacliment   for  N'on-l'ayinent 

of  Temporary  Alimony.  k 

No.    f."i.     Order  to  Show  Cause   \Vliy   Attacliment    Should  not 

Issue. 

No.  4<i.     Order  for  Attachment   and  Commitment. 
No.    17.      Injunction  to  Restrain  Sale  or  lOnctiinhrance  of  Pro; 

erly. 

No.    IS.      Injunction  to  Restrain  Threatened   Injury. 
No.    P.I.      Decree  of  Divorce  Reserving  Qu<'sl'°"  of  Alimony. 
No.  .">(>.      Decree  of  Divorce  and  for  Alimony. 
No.   .~>1.      Decree  foi-  Permanent   Alimony  After   Divorce. 
No.  .">:.'.      Decree  of  Divorce  from   P.ed  and   P.nard  and  for  Ali- 
mony. 

No.  .">::.      Decree  Annullinir  M;irriai;e. 
N«».  r>4.      I  Decree  Alliiiiiin^  Marriage. 
No.   .">.").      Petition  for  Re  1  learin.i;. 
No.  ."i('».     Order  for   Re-Hearing. 
No.  .">T.     Order  Denying  Re  Hearing. 
Nu.   .~»s.     ( 'ertiticate  of  ICnrollmeiit. 
No.  .")!».      Discharge  and  Satisfaction  of  Decree. 
No.   •',().      Petition    for    Discharge  of    Decree. 
No.  ill.     Order   Discharging  Decree. 
No.  I'll'.     Order    Denying    Discharge   ..f    Decree. 
No.  <;::.     Order  Directing  Proseciitiim  Attorm-y  to  Appear  and 

Defend. 

(if.      Report  of  Prosecuting  Attorney. 
<;.">.     Oi-der   A|>pointinj:  an   Attorney   to    Defend. 

379 


FORMS   IX   DIVORCE   PROCEDURE 

I 

No.  fi().  Claim  of  Appeal. 

No.  67.  Notice  of  Appeal  and  of  Application  for  Approval  of 

Bond. 

No.v  OS.  Bond  on  Appeal. 

No.  G9.  Case  on  Appeal. 

No.  70.  Notice  of  Settling  Case  on  Appeal. 

No.  73 .  Notice  of  Amendments  to  Case  on  Appeal. 


380 


FORMS  IN  DIVORCE  PROCEDURE. 

No.  1.    Bill  of  Complaint  for  Adultery,  General  Formi 
(See  Text,  §391) 

STATE  OF  MICHIGAN. 

To  tin-  Circuit  Court  for  the  ('(unity  of Tn  Chancery. 

plaintiff  in  this  suit,  complains  of 

tin-  defendant  lien-ill.  and  respectfully  represents  uuto  tliis 
Honorable  Court  as  follows: 

I. 

That  .  . .  .he  now  is.  ;in<l  for years  last  past,  has 

been  a  resident  of  and  domiciled  in  the  Count}'  of 

and  State  of  Michigan. 

II. 

That   on  or  about  the day  of   

A.  I).  !'.» he  was  duly  and  legally  married  to 

the  defendant  herein,  at  the of 

by    a    duly  and   legally   authorized 

to  solemnize  marriages,  and  that  said  parlies  lived  and  co- 
habited together  as  husband  and  wife  from  the  time  of  said 
marriage  to  the day  of ,  A.  D.  19. . . 

III. 

That   during  the  time  said   parties  so  lived  and   co-habited 
1.0-1  her  as  husband  and  wife  there  were  born  to  them,  the 

offspring  of   said    marriage children,    

of  whom  arc  now  living  and  whose  names  and  ages  are  as 
follows : 

IV. 

That    ....he   lias   been    informed,    and    verily   believes,   and 
therefore    charges    the    truth    to    be.    that    the   said    defendant, 

381 


o.  FORMS    IX    DIVORCE    PROCEDURE 

disregarding  the  solemnity  of  the  marriage  vow  and  obliga- 
tion, has,  since  said  marriage,  committed  adultery  and  had 
illicit  carnal  intercourse  with  divers  persons,  whose  names 
are  at  present  unknown  to  the  plaintiff,  at  divers  times  and 
places;  but  at  what  particular  times  and  places  the  plaintiff 
is  not  at  present  informed. 

V. 

That  ...  .he  is  informed  and  believes,  and  on  such  informa- 
tion and  belief  charges,  that  the  said  defendant  is  now  living 

in  adultery  with  one at in  the  State 

of •.  ..* 

VI. 

That  on  or  about  the day  of . ,  A.  D. 

U)...,   the  said  defendant' did    commit    adultery    and    have 

illicit  carnal  intercourse  with  one   at   

hi  the  State  of  . 

VII. 

And  the  plaintiff  positively  avers  that  the  several  acts  of 
adultery  hereinbefore  charged -were  all  committed  without 
the  consent,  connivance,  privity  or  procurement  of  the  plain- 
tiff, and  that  ....he  has  not  voluntarily  co-habited  with  said 
defendant  since  the  discovery  of  such  adultery,  and  that  this 
bill  is  not  founded  on  or  exhibited  in  consequence  of  any 
collusion,  agreement  or  understanding  whatever  between  the 
parties  hereto  or  between  the  plaintiff  and  any  other  person. 
and  further,  that  the  said  plaintiff  has  never  been  guilty  of 
any  act  of  adultery  or  misconduct,  as  hereinbefore  charged 
against  said  defendant. 

VIII. 

The  said  plaintiff,  in  consideration  of  the  premises,  prays: 
(a)  That  the  said  defendant  may  be  required  to  answer  this 

bill  of  complaint  without  oath,  ( answer  on  oath 

being  hereby  expressly  waived). 

(b)  That  the  marriage  between  the  plaintiff,  , 

and  the  defendant ,  may  be  dissolved  and  a 

divorce  from  the  bonds  of  matrimony  decreed  according  to  the 
statute  in  such  case  made  and  provided. 

382 


«•»       Tllill    Ilic   care,    custody,   control    Mild    education    of   s;iid 

minor  child may  lie-  awarded  to  plaint  ill. 

and  that  ....he  may  have  such  other  relief.  :ind  such  further 
relief  in  the  premises  as  shall  lie  agreeable  to  equity  and 
conscience. 


Stat,-  i,f        ri-m,  ^'1 

County  of }  ss'  <  •  '- 

,  the  above    named    plaintiff,  be  in}*  iluly 

s\\orn.  deposes  and  says  that    .  .lie  has read  the 

foreijoini;  bill  of  complaint,  by  ....  subscribed,  and  knows  the 
contents  thereof,  and  that  the  same  is  true  of  ....  own  knowl- 
edge, except  as  to  those  matters  which  are  therein  stated  to  be 
on  information  and  belief,  and  as  to  those  matters  ....  believes 
it  to  be  true.  Affiant  further  states  that  there  is  no  collusion. 
Understanding  or  agreement  whatever  between  this  affiant  and 

the  defendant  named  in  said  bill  of 

complaint,  or  between  said  affiant  and  any  other  person,  in 
relation  to  said  application  for  divorce. 


Plaintiff. 

Subscribed  and  sworn  to  before  me  this   day  of 

.  A.  D.  !».. 


Notary  Public County./ 

My  Commission   expires    1!) 


No.  2.    Bill  For  Divorce  by  Wife— Adultery. 

(See   Text.    5|:',!U  i 

STATK  OF   .MICHIGAN. 

To  The  Circuit   Court    for County.    In   Chancery. 

plaintiff  in  this  suit,  complains  of 

the  defendant   herein,  and  respectfully  shows  u^ito   this   Hon- 
orable Court   as  follows: 

I. 

That  she  now  is  and  for years  last  past   has  been 

a  resident  of  the  County  of and  State  of  Michigan. 

383 


NO.    2  FORMS    IN    DIVORCE    PROCEDURE 

II 

That  on  or  about  the day  of ,  A.  D.  . . . . , 

she  was  duly  and  legally  married  to  . . . . the  defendant 

herein  named,  at    ,  in  the  State  of ,  by 

,  a duly  and  legally  authorized  to  solem- 
nize marriages,  and 'that  said  parties  lived  and  co-habited 
together  as  husband  and  wife  from  the  time  of  said  marriage 
until  on  or  about  the day  of ,  A.  D.  19 .... 

III. 

That  during  the  time  said  parties  so  lived  and  co-habited 
together  as   husband  and  wife,   there  w . . . .    born   to   them 

. . child . . .  . ,  the  offspring  of  said  marriage, 

of  whom  are  now  living  and  whose  names  and  ages  are  as 
follows :  . 


That  she  is  informed  and  believes,  and  on  such  information 
and  belief  alleges,  that  the  said  defendant,  disregarding  the 
solemnity  of  his  marriage  vow  and  obligation,  has,  since  said 
marriage,  committed  adultery  and  had  illicit  carnal  inter- 
course with  divers  persons  whose  names  are  at  present  un- 
known to  the  plaintiff,  at  divers  times  and  places ;  but  at  what 
particular  times  and  places  the  plaintiff  is  not  at  present 
informed,  and  she'  asks  to  be  permitted  to  amend  her  said 
bill  by  stating  the  names  of  such  persons  and  the  times  and 
places  when  and  where  such  acts  were  committed,  when  she 
shall  have  ascertained  the  same. 

V. 

That  she  is  informed  and  believes,  and  on  such  information 
and  belief  alleges  that  the  said  defendant  is  now  living  in 
adultery  with  one  ,  at  ,  in  the  State  of 


VI. 

That  on  or  about  the day  of ,  A.  D , 

the  said  defendant  did  commit  adultery  and  have  illicit  carnal 
intercourse  with  one ,  at ,  in  the  State  of 


384 


BILL  FOR  DIVORCE  BY    WIFE)  No.   2 

VII. 

And  the  plaintiff  positively  avers  that  the  several  acts  of 
adultery  hereinbefore  charged,  were  all  committed  without  the 
consent,  connivance,  privity  or  procurement  of  the  plaintiff, 
and  that  she  has  not  voluntarily  co-habited  with  said  defendant 
since  the  discovery  of  said  adultery,  and  that  this  bill  of 
complaint  is  not  founded  on  or  exhibited  in  consequence  of 
any  collusion,  understanding  or  agreement  whatever  between 
the  parties  hereto,  or  between  herself  and  any  other  person. 
And  further,  that  she  has  never  been  guilty  of  any  act  of 
adultery  or  misconduct,  as  hereinbefore  charged  against  said 
defendant. 

VIII. 

That  the  said  defendant  is  a  man  of  low,  vicious  and  vulgar 
habits,  and  is  addicted  to  the  use  of  profane  and  obscene 
language  towards  the  plaintiff  and  their  children,  and  in  the 
presence  and  hearing  of  said  children ;  and  is  a  person  wholly 
unfit  to  be  entrusted  with  the  care,  custody  and  education  of 
said  children. 

IX. 

That  the  said  defendant  is  the  owner  in  fee  simple  of  the 

following  described  real  estate,  to-wit : 

of  great  value,  to-wit :  of  the  value  of 

Dollars;  and  is  the  owner  of  a  large  amoilnt  of  personal  prop- 
erty, consisting  of , 

of  the  value  of Dollars  and  upwards.    That 

the  plaint  ill  is  poor,  without  means  to  support  herself  and 
children  and  to  prosecute  this  suit;  and  that  the  said  defend- 
ant is  abundantly  able  to  supply  all  of  the  necessities  and 
wants  of  the  plaintiff  and  said  children,  but  wholly  neglects, 
and  refuses  to  do  so,  and  the  plaintiff  is  now  compelled  to  ac- 
cept assistance  from  her  relatives  and  friends  to  live  and  sub- 
sist from  day  to  day;  and  that  the  plaintiff  and  said  children 
are  but  poorly  supplied  with  clothing  and  other  comforts  of 
life  suitable  to  her  and  their  condition  in  life. 

X. 

That  the  said  defendant  has  threatened,  and  she  fears  he 
will  carry  his  threats  into  execution,  to  sell  off  all  of  his  real 
and  personal  property  to  prevent  the  plaintiff  from  recovering 

38S 


No.    2  FORMS    IN    DIVORCE    PROCEDURE 

alimony  therefrom  for  the  support  of  herself  and  her  said  chil- 
dren, and  that  the  said  defendant  ought  to  be  restrained  by 
the  injunction  of  this  Honorable  Court  from  selling,  assigning, 
incumbering  or  otherwise  disposing  of  the  said  property,  or 
any  part  thereof,  until  the  hearing  of  this  cause  and  suitable 
provision  is  made  for  the  support  of  the  plaintiff  and  her  said 
children. 

Inasmuch,  therefore,  as  the  plaintiff  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity,  she  prays: 

(a)  That ,  who  is  made  party  defendant 

to  this  bill,  may  be  required  to  make  full  and  direct  answer 
to  the  same. 

(b)  That  the  plaintiff  may  be  divorced  and  forever  freed 
from  the  bonds  of  matrimony  now  existing  between  her  and 
the  said  defendant 

(c)  That  the  care,  custody  and  education  of  said  child. . . . 
may  be  awarded  to  the  plaintiff. 

(d)  That  this  Honorable  Court  will  decree  to  the  plaintiff 
such   portions    of   the   property  of  said  defendant  as  may  be 
deemed  necessary  and  proper  for  the  maintenance  of  the  plain- 
tiff and  said  children. 

(e)  That  the  said  defendant  may  be  required  to  pay  to  the 
plaintiff  a  sufficient  sum  of  money  to  enable  her  to  employ 
counsel  and  to  prosecute  this  sui\,  and  for  the  support  of  her- 
self and  said  children  during  the  pendency  thereof. 

(f)  That  the  said  defendant  may  be  restrained  by  the  in- 
junction of  this  court  from  selling,  assigning,  incumbering  or 
otherwise  disposing  of  his  said  property,  both  real  and  per- 
sonal, until  the  further  order  of  this  Court. 

(g)  That  the  plaintiff  may  have  such  other  and  further  re- 
lief in  the  premises  as  equity  may  require  and  as  to  this  Hon- 
orable Court  may  seem  proper. 

IVlay  it  please  the  Court  to  grant  unto  the  plaintiff  the  peo- 
ple's writ  of  injunction,  to  be  directed  to  the  said 

,   the   defendant   herein   named,  restraining  him 

from  selling,  assigning,  incumbering  or  otherwise  disposing  of 
any  of  his  real  and  personal  property  until  the  further  order 
of  this  court. 


Plaintiff. 


Attorney  and  Counsellor  for  Plaintiff 
Business  Address 

386 


BILL  CHARGING   PHYSICAL   INCAPACITY  No.  3 

State  of  Michigan, 


County  of  /  ss' 

,  the  above  named  plaintiff,  being  duly 

sworn,  deposes  and  says  that  she  has  read  the  foregoing  bill 
of  complaint  by  her  subscribed,  and  knows  the  contents  there- 
of, and  that  the  same  is  true  of  her  own  knowledge,  except  as 
to  the  matters  which  are  therein  stated  to  be  upon  her  infor- 
mation and  belief,  and  as  to  those  matters  she  believes  it  to  be 
true ;  and  further,  that  there  is  no  understanding,  collusion  or 
agreement  whatever  between  the  plaintiff  and  the  defendant 
herein,  or  between  the  plaintiff  and  any  other  person,  in  re.ua  nl 
to  her  application  for  divorce. 


Plaintiff. 

Subscribed  and  sworn  to  before  me  this 

day  of ,  A.  D.  19 


Notary  Public County 

My  Commission  expires 19 .... 

No.  3.    Bill  For  Divorce — Physical  Incapacity. 

(See  Text,  §395) 

STATE  OF  MICHIGAN. 

To  The  Circuit  Court  For County  in  Chancery. 

,  plaintiff  in  this  suit,  complains  of 

the  defendant   herein,   and   respectfully  represents  unto  this 
Honorable  Court  as  follows : 

I. 

That he  now  is  and  for rears  lias 

been  a  resident  of  and  domiciled  in  the  County  of. 

and  State  of  Michigan. 

II. 

That  on  or  about  the day  of 

A.  D.  19 ,  . .  .he  was  duly  and  legally  married  to 

,  the  defendant  herein  named,  at  the 

of and  State  of ,  by 

,  a ,  duly  authorized  to 

solemnize  marriages. 

387 


No.  3  FORMS  IN  DIVORCE  PROCEDURE 

III. 

That   immediately   after    the  said  marriage  took  place  the 
plaintiff   discovered    that   the  said  defendant,  at  the  time  of 
..............  intermarriage  with  the  plaintiff,  was,  and  has 

continued  to  be  naturally  impotent,  and  physically  incapable 
of  entering  into  the  marriage  state  ;  that  ........  ........... 

(Here  state  fully  and  particularly  the  character  of  the  impo- 
tency), so  that  said  marriage  could  not  be  consummated  by  the 
sexual  intercourse  of  the  said  parties;  that  said  plaintiff  did 
not  know  of  and  had  no  reason  to  suspect,  or  opportunity  to 
discover,  such  impotency  and  physical  incapacity  until  after 
the  solemnization  of  said  marriage. 

IV. 

That  the  plaintiff  is  informed  and  believes,  and  so  charges 
the  fact  to  be,  that  the  said  impotency  and  physical  incapacity 
of  the  said  defendant  existed  at  the  time  of  said  marriage,  and 
that  it  still  exists  and  is  incurable. 


The  plaintiff  positively  avers  that  the  acts  done  and  cause  of 
divorce  charged  herein,  for  which  divorce  is  sought,  were  com- 
mitted without  the  consent,  connivance,  privity  or  procure- 
ment of  the  plaintiff,  and  that  such  bill  is  not  founded  on  or 
exhibited  m  consequence  of  any  collusion,  agreement  or  under- 
standing whatever  between  the  parties  thereto,  or  between  the 
plaintiff  and  any  other  person. 
In  consideration  whereof  the  plaintiff  prays: 

(a)  That  the  said  ................  ,  the  defendant  herein 

named,  may  be  required  to  answer  this  bill  of  complaint,  but 
not  on  oath,  (Answer  on  oath  being  hereby  expressly  waived). 

(b)  That  the  marriage  between  the  plaintiff  and  said  de- 
fendant be  dissolved,  and  a  divorce  from  the  bonds  of  matri- 
mony decreed  according  to  the  statute  in  such  case  made  and 
provided. 

(c)  That  the  plaintiff  may  have  such  other  or  further  re- 
lief in  the  premises  as  to  the  Court  may  seem  proper  and  as 
shall  be  agreeable  to  equity  and  good  conscience. 


Attorney  for  Plaintiff 
Business  Address . . 


388 


HIM.  i  IIAI;«,I\I;    HKSKKTK'N  No.  4 

Slittr  <>t'  Midii-Mii      \ 
Bounty  ..t  /  * 

,  the  above  named  plaintiff,  bein^  duly 

sworn,  deposes  and  says  that  . .  .he  has  heard  read  the  fore- 
going bill  of  complaint  by subscribed,  and  knows 

the  contents  thereof,  and  that  the  same  is  true  of 

own  knowledge,  except  as  to  those  matters  which  are  therein 
stated  to  be  upon  information  and  belief,  and  as  to  those  mat- 
ters   believes  it  to  be  tme.  Affiant  further  states  that 

there  is  no  collusion,  understanding  or  agreement  whatever 
between  affiant  and  the  defendant  nerein,  or  between  this  affi- 
ant and  any  other  person  in  relation  to  this  application  for 
divorce. 


Plaintiff. 

Subscribed  and  sworn  to  before  me  this 

day  of ,  A.  D.  19 


Notary  Public County. 

My  Commission  expires 19 

No.  4.    Bill  For  Divorce  Charging  Desertion. 
(See  Text,  §396) 

STATE  OF  MICHIGAN. 

To  the  Circuit  Court  for County.     In  Chancery. 

Plaintiff  in  this  suit,  complains  <>f 

the  defendant  herein,  and  respec- 
tively shows  unto  this  Honorable  Court  as  follows: 

I. 

That    ....he  now  is,  and  for years  and  upwards, 

last  past  has  been,  a  resident  of  and  domiciled  in  the  County 
of and  State  of  Michigan. 

II. 

That  on  or  about  the day  of A.  D 

. .  .he  was  duly  and  legally  married,  to the 

defendant  herein,  at  the.  A of in  the  State  of 

* -....,    by a duly    and 

389 


NO.  4  FORMS  IN  DIVORCE  PROCEDURE 

• 

legally  authorized  to  solemnize  marriages,  and  that  said  par- 
ties lived  and  cohabited  together  as  husband  and  wife  from  the 
time  of  said  marriage  until  on  or  about  the ...?..,....  day  of 
A.  D. . ,  at  which  time  the  said  defend- 
ant deserted  the  plaintiff  as  is  more  particularly  hereinafter 
shown. 

III. 

That  during  the  time  said  parties  so  lived  and  co-habited 

together  as  husband  and  wife  there  were  born  to  them •, 

children,  the  offspring  of  said  marriage of  whom  are 

now  living,  and  whose  names  and  ages  are  as  follows 


IV. 

The  plaintiff  further  represents  that  the  said the 

defendant  herein,  wholly  disregarding  h.  ."y.  .marriage  vows 

and  obligations  afterwards,  on  the day  of 

A.  D wilfully  deserted  and  abandoned  the  plaintiff, 

without  any  reasonable  cause,  and  against  the  will  of  the 
plaintiff  for  the  period  of  two  years  and  upwards,  and  has  wil- 
fully persisted  in  such  desertion  and  still  continues  the  same. 

V. 

And  the  plaintiff  positively  avers  that  the  acts  done  by  the 
said  defendant,  and  hereinbefore  charged,  and  for  which  di- 
vorce is  sought  were  all  committed  without  the  consent,  con- 
nivance, privity  or  procurement  of  the  plaintiff,  and  that  this 
bill  of  complaint  is  not  founded  on  or  exhibited  in  consequence 
of  any  collusion,  agreement,  or  understanding  whatever,  be- 
tween the  parties  hereto,  or  between  the  plaintiff  and  any 
other  person. 

VI. 

Inasmuch,  therefore  as  the  plaintiff  is  without  remedy  in  the 
premises,  except  in  a  Court  of  equity,  . .  \he  prays: 

(a)  That  the  said. f: who  is  made  a  party  defend- 
ant to  this  bill  may  be  required  to  answer  the  same  fully  and 
particularly,  but  without  oath,  answer  on  oath  being  hereby 
expressly  waived. 

(b)  That  the  marriage  between  the  plaintiff  and  the  said 

.  ft>. ; the  defendant  herein,  may  be  dissolved  and 

a  divorce  from  the  bonds  of  matrimony  decreed,  according  to 

390 


r.ii.i.  AI.U:<;IN<;  I>I;SI:KTIO\  No.  5 

tin1  statute  in  such  rase  made  and  proved. 

.  (c)  ThXt  tin-  plaintiff  may  be  awarded  the  care,  custody 
;in«l  education  <•!'  said  children,  the  surviving  isMie  of  sni.l  in;ir 
riage. 

(d)*'  That  the  plaintiff  may  have  sin  -It  oilier  or  further  re 
lief  in  the  premises  as  to  this  Honorable  Court  may  seem  prop 
er,  and  as  shall  l»e  agreeable  to  equity  and  good  conscience. 


Plain  ti  IV. 


Attorney  for  Plaintiff. 
Business  Address 

State  of  Michigan     \ 
County  of ./fa 

/. • . '.  .' .  . . .  .7Tcp4*Or;  the  above  named  plaintiff,  being 

duly  sAvorny  Imposes  and  says  thiit.5^he  has  heard  read  the 

foregoing  bill  of  complaint  by-/A^LAt subscribed, 

and  knows  the  contents  thereof,  and  that  the  same  is  true  of 
/LM—own  knowledge,  except  as  to  the  matters  which  are 
i herein  stated  to.  be  upon  information  and  belief,  and  as  to 
those  matters.  «m£. believes  it  to  be  true.  Affiant  further 
states  that  there  is  no  collusion,  understanding  or  agreement, 
whatever,  between  the  parties  hereto,  or  between  the  affiant 
and  any  other  person  in  regard  to  this  application  for  a  di- 
vorce. 


Plaintiff. 
Subscribed  and  sworn  to  before  me  this day  of 

•  f-v  -•  ^v     .    /j — 

.  .  .A.    1). 


Notary  Public. 
Mv  Commission  will  Expire fyrfa 

3, 

No.  5.  Bill  For  Divorce,  setting  forth  a  Common  Law  Marriage 
and  alleging  Desertion  as  ground  for  Divorce  asking  for 
Alimony  and  custody  of  Children. 

(See  Text,  §396) 

STATE  OF  MICHIGAN. 

To  the  Circuit  Court  for County.     In  Chancery. 

391 


No.  5  FORMS  IN  DIVORCE  PROCEDURE 

,  plaintiff  in  this  suit,   complains 

of the  defendant  herein,  and  respect- 
fully represents  unto  this  Honorable  Court  as  follows: 

I. 

That  on  to-wit :  the day  of A.  D. 

the  said  plaintiff  and  the  said  defendant  entered  into 

an  agreement  by  which  the  said  defendant  solemnly  promised 
and  agreed  to  and  with  the  said  plaintiff,  to  take  the  said 
plaintiff  as  his  wife,  and  in  consideration  of  such  promise  and 
agreement  by  the  said  defendant,  she  the  said  plaintiff  then 
and  there  promised  and  agreed  to  take  the  said  defendant  as 
her  husband,  and  said  parties  then  and  there  promised  and 
agreed  each  to  and  with  the  other,  thence  forth  and  as  long  as 
they  both  should  live  to  have  and  assume,  each  to  and  with  the 
other  the  relation  of  husband  and  wife,  and  to  Jive  and  cohabit 
together  as  such;  that  from  and  after  said  date,  the  said 
parties  did  live  and  co-habit  together  as  husband  and  wife 

until  on  or  about  the day  of A.  D , 

at  which  time  the  defendant  deserted  and  abandoned  the  plain- 
tiff as  is  more  particularly  hereinafter  set  forth. 

II. 

That  by  reason  of  such  agreement,  so  made  between  said 
parties  as  aforesaid,  and  said  co-habitation  together  of  said 
parties  as  husband  and  wife  as  aforesaid,  the  said  plaintiff  be- 
came duly  and  legally  married  to  said  defendant,  on  the  date 

aforesaid,  at  the of  in  the  State  of , 

and  is  still  the  wife  of  said  defendant. 

III. 

That  during  the  time  said  parties  so  lived  and  co-habited 
together  as  husband  and  wife  as  hereinbefore  set  forth,  there 
were  born  to  said  parties,  as  the  issue  of  said  intermarriage. 

children, of    whom    are    now    living 

and  whose  names  and  ages  are  as  follows, 


IV. 

The  plaintiff  further  represents  that  the  said , 

the  defendant  herein,  wholly  regardless  of  his  marriage  cove- 

392 


BII.I.  Ai.u:<;iNof   DKSKKTION  .  No.  5 

nants  .UK!  obligations,  afterwards  and  on  the day 

of A.  D ,  wilfully  deserted  the  plain  till,  against. 

her  will.  and  absented  himself  from  her  continuously  for  t In- 
period  of  two  years  and  upwards,  and  during  all  of  said  lime 
has  persisted  in  such  desertion  and  abandonment  of  the  plain- 
tiff, and  still  continues  and  persists  in  tin-  saint-  without  any 
reason. or  cause  whatever. 

V.    ' 

The  plaintiff  positively  avers  that  the  acts  done  by  the  said 
defendant,  and  hereinbefore  charged,  for  which  divorce  is 
sought,  were  all  committed  without  the  consent,  connivance, 
privity,  or  procurement  of  the  plaintiff,  and  that  this  bill  of 
complaint  is  not  founded  on  or  exhibited  in  consequence  of 
any  collusion,  understanding  or  agreement  whatever,  between 
the  parties  hereto,  or  between  the  plaintiff  and  any  other  per 
son. 

VI. 

Inasmuch  therefore,  as  the  plaintiff  is  without  remedy  in 
the  premises,  except  in  a  Court  of  equity,  she  prays: 

(a)  That  the  said who  is  made  a  party 

defendant  herein,  may  be  required  to  make  full  and  direct  an- 
swer to  all  and  singular  the  matters  and  things  herein  charged, 
but  not  on  oath,  his  answer  on  oath  being  hereby  expressly 
waived. 

VII. 

(b)  That  the  said  marriage  between   the  said  defendant 

and  the  plaintiff  be  dissolved,  and  a 

divorce   from    the  bonds  of  matrimony  decreed,  according  to 
the  statute  in  such  case  made  and  provided. 

(c)  That  the  plaintiff  may  be  awarded  the  care,  custody 

and  education  of  the  said  children, the 

Surviving  issue  of  said  marriage.  ' 

(d)  That  the  plaintiff  may  have  such  other  or  such  further 
relief  in  the  premises  as  to  the  Court  may  seem  proper,  and  as 
shall  be  agreeable  to  equity  and  good  conscience. 


Plaintiff. 


Attorney  for  Plaintiff. 
business  Address. . 


393 


No.  6  .          FORMS    IN    DIVORCE    PROCEDURE 

J> 

State  of  Michigan 


County  of 

,  The  above  named  plaintiff, 

being  duly  sworn  deposes  and  says  that  she  has  heard  read  the 
foregoing  bill  of  complaint  by  her  subscribed,  and  knows  the 
contents  thereof,  and  that  the  same  is  true  of  her  own  knowl- 
edge, except  as  to  those  matters  which  are  therein  stated  to  be 
upon  her  information  and  belief  and  as  to  those  matters  she 
believes  it  to  be  true.  Affiant  further  states  that  there  is  no 
collusion,  understanding,  or  agreement  whatever,  between  the 
parties  hereto,  or  between  affiant  and  any  other  person  in  re- 
lation to  her  application  for  divorce. 


Plaintiff. 

Subscribed  and  sworn  to  before  me  this day  of 

A.  D.. 


Notary  Public. 
My  Commission  will  expire, 


No.  6.     Bill  For  Divorce  Charging  Extreme  Cruelty  and  Asking 
For  Alimony  and  Custody  of  Children. 

(See  Text,  §394) 

STATE  OF  MICHIGAN. 

To  the  Circuit  Court  for County.     In  Chancery. 

,  plaintiff  in  this  suit,  complains  of 

the  defendant  herein,  and  respectful- 
ly shows  unto  this  Honorable  Court  as  follows : 

I. 

That  she  now  is,  and  for  more  than  two  years  last  past  has 

been  a  resident  of,  and  domiciled  in  the  County  of 

and  State  of  Michigan. 

II. 

That  on  or  about  the .day  of A.  D , 

she  was  duly  and  legally  married  to'. , 

the  defendant  herein,  at  the of". in  the 

394 


I 

P.I u,  AI.I.KI.-IM.   niviii:o;  No.  6 

Slate  ol by a  Min- 
ister of  tin*  gospel,  duly  and  legally  authori/cd  to  solemnize 
marriages,  and  that  said  parties  lived  and  co  habited  together 
as  husband  and  wife  from  the  time  of  such  intermarriage  un- 
til on  or  about  the day  of \.  I> , 

at  which  time  the  plaintiff  was  compelled  to  leave  the  defend 
ant  on  account  of  his  cruel  and  inhuman  treatment  of  her.  as 
is  more  particularly  hereinafter  set  forth. 

III. 

That  during  the  time  the  said  parties  so  lived  and  co-hab- 
it ed  together  as  husband  and  wife,  and  up  to  the  time  of  ex- 
hibiting this,  the  said  plaintiff's  bill  of  complaint,  the  said 

j >lain tiff  bore  to  the  said  defendant children, 

the  issue  of  said  marriage, of  whom  are  now  living 

and  whose  names  and  ages  are  as  follows 

IV. 

That  the  said ,  the  defendant  here- 
in, disregarding  the  solemnity  of  his  marriage  vows  and  obli- 
gation, ever  since  said  marriage  and  especially  during  the  past 

years,  has  been  guilty  of  extreme  and  repeated  cruel-' 

ty  toward  the  plaintiff,  that  is  to  say,  that  the  said  defendant, 
on  divers  and  frequent  days  and  times  since  said  marriage 
has  cruelly  beaten  and  struck,  kicked  and  choked  her,  and  has 
neglected  and  refused  to  furnish  her  and  her  said  children 
with  proper  food  and  clothing,  and  has  frequently  used  vile, 
obscene  and  profane  language  toward  her,  and  has  frequently 
accused  her  of  unchastity,  without  any  reason  or  cause  what- 
ever; and  particularly,  on  or  about  the day  of 

A.  D ,  the  said  defendant  assaulted  and  beat  the  plain- 
tiff and  called  her  vile  and  obscene  names  and  used  toward  her 
language  too  vile  and  obscene  to  be  spread  upon  the  records 
of  this  Court. 

V. 

That  on  or  about  the day  of A.  D. 

,    the   said    defendant  became  enraged  at  the  plaintiff 

and  called  her  vile  names  and  choked  her  and  beat  and  iM-used 
her  so  that  she  was  sick  for  a  long  time  and  was  compelled  to 
have  the  attendance  of  physicians  for  several  days. 

395 


No.  6  FORMS    IN    DIVORCE    PROCEDURE 

VI. 

That  during  all  of  the  time  said  parties  lived  and  co-habited 
together  as  husband  and  wife,  she  always  treated  the  defend- 
ant with  kindness  and  consideration  and  performed  all  of 
her  wifely  duties,  and  tried  and  employed  her  best  efforts  to 
please  the  defendant,  but  without  avail,  and  his  conduct  to- 
ward her  became  so  cruel  and  inhuman  that  it  was  no  longer 
safe  for  her  to  live  and  co-habit  with  him  as  his  wife,  and  fear- 
ing to  longer  live  with  him,  on  account  of  his  cruel  conduct, 

she  took  her young  children  and  left  him  on  or  about 

the day    of . . . . A.    D ,    and    has   not 

since  lived  with  him. 


-, 


VII. 


\That  since  the  plaintiff  left  said  defendant  he  has  continued 
to  annoy  and  abuse  her,  and  has  threatened  to  take  said  chil^ 
dren  from  her  by  force,  and  to  kill  the  plaintiff  if"  she  refuses 
to  let  him  have  said  children  or  attempts  to  prevent  him  from 
taking  them  from  her,  and  she  fears  and  believes,  and  has  good 
reason  to  fear  and  believe  that  he  will  carry  said  threats  into 
execution  if  not  restrained  from  so  doing  by  the  injunction  of 
this  Court. 

VIII. 

That  the  said  defendant  is  possessed  of  real  estate  of  the 

value  of. dollars  and  upwards,  and  of  personal 

property  of  the  value  of .dollars  and  upwards, 

besides  the  household  goods  used  by  said  parties  during  the 
time  they  lived  together,  and  he  is  well  able  to  furnish  the 
plaintiff  and  her  said  children  with  a  comfortable  living  and 
support,  but  neglects  and  refuses  to  do  so;  that  he  threatens 
and  the  plaintiff  fears  that  he  will  carry  such  threats  into  exe- 
cution, to  sell  his  said  property  and  said  household  goods,  or 
otherwise  incumber  and  dispose  of  the  same  to  prevent  the 
plaintiff  from  recovering  alimony  for  the  support  of  herself 
and  children,  unless  he  shall  be  restrained  from  so  doing  by 
the  injunction  of  this  Court. 

IX. 

The  plaintiff  positively  avers  that  the  acts  done  by  said  de- 
fendant as  hereinbefore  set  forth,  and  for  which  divorce  is 
sought,  were  all  committed  without  the  consent,  connivance, 

396 


BILL    ALLEGING    DESERTION  No.  6 

privity  or  procurement  of  the  plaintiff,  and  that  this  bill  of 
complaint  is  not  founded  on  or  exhibited  in  consequence  of 
any  collusion,  understanding  or  agreement  between  the  par- 
ties hereto,  or  between  the  plaintiff  and  any  other  person;  and 
that  she,  the  said  plaintiff  has  never  been  guilty  of  any  of  the 
acts  herein  charged  against  said  defendant. 

X. 

In  consideration  whereof,  and  inasmuch  as  the  plaintiff  is 
without  remedy  in  the  premises,  except  in  a  court  of  equity. 
she  prays: 

(a)  That  the  said  defendant  may  be  required  to  answer 
this  bill  of  complaint  fully  and  particularly,  but  not  on  oath, 
his  answer  on  oath  being  hereby  expressly  waived. 

(b)  That  the  marriage  between  the  plaintiff  and  the  <!<•-. 
fendant   may   be   dissolved,  and  a  divorce  from  the  bonds  of 
matrimony  decreed,  according  to  the  statute  in  such  case  made 
and  provided. 

(c)  That  the  plaintiff  may  be  awarded  the  care,  custody 
and  education  of  said  niinor  children,  the  surviving  issue  of 
said  marriage. 

(d)  That  this  Honorable  Court  will  decree  to  the  plain 
tiff  the  said  household  furniture  and  such  sums  of  money  to 
be   paid   by   the   defendant  to  her,  in  such  sums  and  at  such 
times  ns  this  Honorable  Court  may  direct,  and  sufficient  to 
enable  her  to  employ  counsel  and  to  prosecute  this  suit.  ami 
to  support  herself  and  children  during  the  pendency  thereof^ 

(e)  That  on  the  final  hearing  of  this  cause  the  Court  will 
award  to  the  plaintiff  such  'sums  of  money  or  property  of  tin- 
defendant  as  may  be  proper  as  permanent  alimony  for  the  suj> 
port  of  said  plaintiff  and  her  said  children.     »-  -v^.   V  V4     V 

(f)  That  the  said  defendant  may  be  restrained  by  the  ofr- 
der  and  injunction  of  this  honorable  Court,  from  selling,  in 
cumbering,  assigning,  or  otherwise  disposing  of  any  of  his  real 
and  personal  property  and  said  household  goods,  and  from  in- 
terfering in  any  manner  with  the  plaintiff  or  said  children 
and  from  taking  or  attempting  to  take  said  children  from  the 
custody  and  control  of  the  plaintiff  by  force  or  otherwise  un- 
til the  further  order  of  this  Court. 

-  (g)     That  the  plaintiff  may  have  such  other  or  further  re- 
lief in  the  premises  as  to  this  honorable  Court  may  seem  prop- 
er and  as  shall  be  agreeable  to  equity  and  good  conscience. 
May   it   please  the  Court,  the  premises  heint:  considered  to 

397 


No.  7  FORMS   IN   DIVORCE  PROCEDURE 

grant  unto  the  plaintiff  the  people's  writ  of  injunction,  re- 
straining the  said  defendant  from  selling,  assigning,  incum- 
bering  or  otherwise  disposing  of  any  of  his  real  or  personal 
property  and  household  goods,  and  from  in  any  manner  in- 
terfering with  the  plaintiff  or  said  children,  and  from  taking 
or  attempting  to  take  said  children  from  the  custody  and  con- 
trol of  said  plaintiff  by  force  or  otherwise  until  the  further 
order  of  this  Court. 


Plaintiff. 


Attorney  for  Plaintiff. 
Business  Address . . 


State  of  Michigan 
County  of '  K 

,  the  above  named  plaintiff  being 

duly  sworn  deposes  and  says  that  she  has  heard  read  the  fore- 
going bill  of  complaint  by  her  subscribed  and  knows  the  con- 
tents thereof,  and  that  the  same  is  true  of  her  own  knowl- 
edge, except  as  to  the  matters  which  are  therein  .stated  to  be 
upon  her  information  and  belief,  and  as  to  those  matters  she 
believes  it  to  be  true. 

This  affiant  further  on  oath  states  that  there  is  no  collusion, 
understanding  or  agreement  whatever  between  the  parties, 
hereto,  or  between  this  affiant  and  any  other  person  in  relation 
to  her  application  for  divorce. 


Plaintiff. 
Subscribed  and  sworn  to  before  me  this day  of 


.A.  D.  19. 

Notary  Public. 


My  Commission  will  Expire,. 


No.  7.    Bill  for  Divorce  by  Wife  Charging  Habitual  Drunkenness. 
(See  Text,  §397) 

STATE  OF  MICHIGAN. 

To  the  Circuit  Court  for  the  County  of In  Chancery. 

/,  Plaintiff  in  this  suit,  complains  of 

398 


,-f 


O 

/ 


BILL    CHARGING    HABITUAL    DRUNKENNESS  No.  7 

the  defendant  herein,  and  respect 

fully  shows  unto  the  Court  as  follows : 

I. 

That  she  now  is,  and  for  more  than years  has 

been  a  resident  of  and  domiciled  in  the  County  of 

and  State  of  Michigan. 

II. 

That  on  or  about  the day  of A.  D. 

,  she  was  duly  and  legally  married  to 

,  the  defendant  herein,  at in  the 

State  of ,  and  the  name  which  she  bore  prior 

to  said  marriage  was 

III. 

That  from  and  after  said  marriage  said  parties  lived  and 
co-habited  together  as  husband  and  wife  until  on  or  about 

the day  of A.  D.  19 ,  at  which 

time  the  plaintiff  was  compelled  to  leave  the  defendant  because 
of  his  habitual  drunkenness,  and  cruelty  toward  the  plaintiff 
;is  is  more  particularly  hereinafter  set  forth. 

IV. 

That  during  the  time  said  parties  so  lived  and  cohabited  to- 
gether as  husband  and  wife,  and  up  to  the  time  of  exhibiting 
this  the  plaintiff's  bill  of  complaint,  she-bore  unto  said  defend- 
ant  children,  the  issue  of  said  marriage,  .'. 

of  whom  are  now  living,  and  whose  names  and  ages  are  as  fol- 
lows : 

V. 

That  since  said  marriage  the  said  defendant  disregarding 
the  solemnity  of  his  marriage  vows  and  obligations  has  be- 
come an  habitual  drunkard,  and  during  the  past 

years  has  squandered  his  property  and  earnings  in  drinking 
and  carousing,  and  has  neglected  and  misused  the  plaintiff 
and  their  children,  to  that  extent  that  it  is  no  longer  safe  or 
proper  for  the  plaintiff  and  said  children  to  live  with  him. 


393 


2sTO.  7  FORMS   IN   DIVORCE   PROCEDURE 

> 

VI. 

That  at  the  time  of  said  marriage  the  defendant  was  a  tem- 
perate and  industrious  man,  and  for  several  years  continued 
to  so  remain,  during  which  time  he  accumulated  considerable 
property,  by  his  labor  and  with  the  assistance  of  the  plaintiff, 

amounting  to  upwards  of dollars ;  that  about 

years  prior  to  the  exhibiting  of  this  bill  of  complaint,  the  de- 
fendant, against  the  advice  and  remonstrances  of  the  plaintiff 
commenced  the  use  of  intoxicating  liquors,  and  has  ever  since 
been  in  the  habit,  of  getting  intoxicated,  and  for  the  past 

years  has  become  beastly  drunk  every  time  he  was 

where  he  could  procure  liquor,  and  for  a  considerable  period 
of  time  before  the  plaintiff  left  him  he  was  drunk  every  day ; 
that  when  under  the  influence  of  liquor  the  defendant  was 
cross  and  ugly  toward  the  plaintiff  and  their  children  and  fre- 
quently beat  and  otherwise  abused  them  in  a  most  cruel  and 
inhuman  manner. 

VII. 

That  during  all  of  the  time  said  defendant  was  acquiring 
the  liquor  habit,  the  plaintiff  tried  to  dissuade  him  from  the 
use  of  liquor,  and  in  a  kindly  manner  advised  him  to  break 
away  from  the  pernicious  habit,  but  without  avail;  that  the 
habit  continued  to  grow  more  fixed  as  time  continued  until 
said  defendant  has 'become  such  an  habitual  drunkard  that  he 
is  entirely  unfit  to  have  charge  of  his  family  and  property. 

VIII. 

That  the  defendant  has  squandered  and  spent  a  large  por- 
tion of  his  property  in  drinking  and  carousing,  but  is  still  the 

owner  of  the  following  described  real  estate 

which  the  plaintiff  is  informed  and  be- 
lieves is  of  the  value  of dollars,  and  of  personal 

property  of  the  value  of dollars  and  upwards ;  and 

said  defendant  is  abundantly  able  to  support  the  plaintiff  and 
their  said  children  out  of  said  property  but  neglects  and  re- 
fuses to  do  so. 

IX. 

That  the  plaintiff  is  poor,  and  has  no  means  of  support  of 
herself  and  children  and  no  means  with  which  to  employ  coun- 
sel 'and  to  prosecute  this  suit,  other  than  her  daily  labor  at 

400 


BILL  I'll  AK'.lN'i    IIAHITI'AL   DKT'NKENNBSS  No.  7 

menial  work:  ih;it  she  i$  in  very  poor  health  ami  unable  to 
work  much  of  tin-  lime,  and  requires  the  services  of  a  physi- 
cian, but  has  no  means  with  which  to  pay  for  such  services; 
that  she  is  but  poorly  supplied  with  clothing  for  herself  ;nnl 
children,  and  is  obliged  to  keep  said  children  out  of  school  lie 
cause  of  their  not  having  suitable  and  comfortable  clothing. 

X. 

That  she  is  informed  and  believes  and  therefore  alleges  the 
fact  to  be  that  the  defendant  is  still  squandering  his  property 
and  the  income  therefrom  in  drinking  and  carousing,  and  has 
threatened  to  sell,  incumber,  or  dispose  of  such  property  to 
prevent  the  plaintiff  from  recovering  alimony  for  the  sup- 
port of  herself  and  children,  and  the  plaintiff  fears  that  he 
will  carry  such  tin-eats  into  execution,  unless  restrained  from 
so  doing  by  the  injunction  of  this  Conn. 

XI. 

The  plaintiff  positively  avers  that  the  acts  done  and  causes 
for  divorce  hereinbefore  set  forth,  and  for  which  divorce  is 
sought,  were  all  committed  without  the  consent,  connivance, 
privity  or  procurement  of  the  plaintiff,  and  that  this  bill  of 
complaint  is  not  founded  on  or  exhibited  in  consequence  of 
any  collusion,  understanding  or  agreement  whatever,  between 
the  parties  hereto,  or  between  the  plaintiff  and  any  other  per- 
son; and  that  the  plaintiff  has  never  been  guilty  of  any  of  the 
acts  herein  charged  against  the  defendant. 

XII. 

In  consideration  whereof,  and  inasmuch  as  the  plaintiff  is 
without  remedy  in  the  premises,  except  in  a  Court  of  equity, 
she  prays: 

.  (a)  That  the  defendant  be  required  to  answer  all  and 
singular  the  matters  and  things  herein  charged,  but  not  on 
oath,  his  answer  on  oath  being  hereby  expressly  waived. 

(b)  That  the  marriage  between  the  plaintiff  and  the  de- 
fendant be  dissolved  and  a  divorce  from  the  bonds  of  matri- 
mony decreed,  according  to  the  statute  in  such  case  made  and 
provided. 

(c)  That  the  care,  custody  and  education  of  said  children 
may  be  awarded  to  the  plaintiff. 

(d)  That  the  defendant  may  be  required  by  the  order  and 

401 


No.  7  FORMS    IN   DIVORCE   PROCEDURE 

decree  of  this  Honorable  Court  to  pay  to  the  plaintiff  a  suffi- 
cient sum  of  money  for  temporary  alimony  and  expenses  as 
will  enable  her  to  employ  counsel  and  prosecute  this  suit,  and 
to  support  herself  and  children  and  provide  them  with  cloth- 
ing during  the  pendency  thereof. 

(e)  That  upon  the  final  hearing  of  this  cause  the  court 
will  decree  to  be  paid  to  the  plaintiff  by  the  defendant  such 
sufficient  sums  of  money  as  may  be  necessary  for  the  support 
of  the  plaintiff  and  her  said  children,  as  permanent  alimony 
for  such  purpose. 

(f)  That  the  defendant  may  be  restrained  from  selling, 
assigning,   incumbering,    or  otherwise  disposing   of  his   said 
property  or  any  part  thereof  until  the  further  order  of  this 
Honorable  Court. 

(g)  That  the  plaintiff  may  have  such  further  or  other  re- 
lief in  the  premises,  as  to  the  Court  may  seem  proper,  and  as 
shall  be  agreeable  to  equity  and  good  conscience. 

May  it  please  the  Court,  the  premises  being  considered,  to 
grant  unto  the  plaintiff,  the  people's  writ  of  injunction, 
directed  to  the  defendant,  restraining  him  from  selling,  assign- 
ing, incumbering  or  otherwise  disposing  of  any  of  his  said 
property  until  the  further  order  of  this  Court. 


Plaintiff. 


Attorney  for  plaintiff, 
Business  Address   


State  of  Michigan    \ 
County  of /  k 

,  the  above  named  '^plaintiff,  being 

duly  sworn,  deposes  and  says  that  she  has  heard  read  the 
foregoing  bill  of  complaint,  by  her  subscribed,  and  knows  the 
contents  thereof,  and  that  the  same  is  true  of  her  own  knowl- 
edge, except  as  to  the  matters  which  are  therein  stated  to  be 
upon  her  information  and  belief,  and  as  to  those  matters  she 
believes  it  to  be  true.  Affiant  further  on  oath  states  that  there 
is  ne  collusion,  understanding  or  agreement  whatever  be- 
tween the  parties  hereto,  or  between  the  affiant  and  any  other 
person  in  relation  to  her  application  for  divorce. 
/ 

Plaintiff. 

402 


IUI.1,    FOR   DIVORCE   FROM    BED   AND   BOARD  No.  8 


and  sworn  to  before  me  this   ..........   day  of 

.  A.  D.  19.. 


Notary  Public. 
My  Commission  will  expire 

No.  8.    Bill  for  Divorce  From  Bed  and  Board. 

State  of  Michigan. 

The  Circuit  Court  for County. — In  Chancery. 

To  the  Court: 

,  plaintiff  in  this  suit,  complains 

of  ,  the  defendant  herein,  and  respect- 
fully shows  unto  this  Honorable  Court  as  follows: 

I. 

That  she  is  a  resident  of  and  domiciled  in  the  said  County 

of and  has  had  her  residence  and  domicile 

in  the  state  of  Michigan  for  the  period  of years  and 

upwards,  immediately  preceding  the  time  of  exhibiting  this 
her  bill  of  complaint. 

II. 

That  heretofore  and  on  or  about  the day  of 

A.  D ,  the  plaintiff  whose  maiden 

name  was ,  was  lawfully  married  to 

the  defendant  herein,  at  the of and 

State  of  ;  and  that  she  continued  to  live  and 

co-habit  with  said  defendant  as  his  wife  from  the  time  of  the 

said  marriage  until  on  or  about  the  day  of 

A.  D ,  when  the  plaintiff  was  com- 
pelled to  leave  the  defendant,  on  account  of  his  extreme  and 
repeated  cruelty,  toward  the  plaintiff  and  her  children,  and 
on  account  of  his  refusal  to  provide  a  suitable  maintenance 
for  the  plaintiff  and  their  children  as  hereinafter  set  forth. 

III. 

That  during  the  time  said  parties  so  lived  and  co-habited 
together  as  husband  and  wife,  and  up  to  this  the  time  of  ex- 
hibiting this  bill  of  complaint,  the  plaintiff  bore  unto  the  de- 
fendant    children  of  whom  are  now  living 

and  whose  names  and  ages  are  as  follows, 

403 


No.  8  FORMS    IX    DIVORCE     PROCEDURE 

IV. 

That  during  all  of  the  time  the  plaintiff  and  defendant  lived 
and  cohabited  together  as  husband  and  wife,  the  plaintiff 
faithfully  discharged  all  of  her  duties  as  such  wife.  But  the 
defendant,  disregarding  the  obligations  of  his  marriage  vow, 
and  his  duty  to  treat  the  plaintiff  with  kindness  and  affection, 
within  a  few  months  after  their  marriage  commenced  a  course 
of  unkind,  cruel  and  brutal  treatment  towards  her,  w,hich 
continued  until  she  was  finally  compelled  to  and  did  separate 

from  him  on  the day  of  .  / A.  D , 

and  that  on  divers  occasions  while  she  so  lived  and  co-habited 
with  him  as  his  wife,  the  defendant  was  guilty  of  extreme 
and  repeated  cruelty  towards  her,  in  this:  (Set  forth  the 
several  acts  of  cruelty,  and  the  language  used  by  the  defend- 
ant fully  and  particularly,  giving  time  and  place  as  near  as 
may  be). 

V. 

That  the  defendant  is  a  man  of  violent  and  ungovernable 
temper,  and  on  many  occasions  during  the  time  when  she  lived 
and  co-habited  with  him  as  his  wife,  he  addressed  her  with 
vile,  opprobrious,  profane  and  ,obscene  language  and  epithets, 
too  vile,  profane  and  obscene  to  be  here  repeated,  accompanied 
with  threats  ofl  personal  violence,  and  that  in  consequence  of 
such  cruel  and  inhuman  treatment  it  has  become  unsafe  for 
her  to  live  or  remain  with  him,  and  by  reason  thereof  she  was 
compelled  to  and  did  leave  him  as  hereinbefore  stated,  and 
was  compelled  to  seek  refuge  with  her  friends  and  relations, 
and  since  which  time  she  has  not  dared  and  still  does  not  dare 
to  return  to  the  defendant's  house  or  to  live  with  him. 

VI. 

The  plaintiff  further  represents  unto  this  honorable  Court 
that  during  all  of  the  time  that  she  lived  and  co-habited  with 
the  defendant  as  his  wife,  he  the  said  defendant  neglected  and 
refused  to  provide  for  the  plaintiff  a  suitable  maintenance, 

and  during  the   years  before  said  separation  the 

plaintiff  was  compelled  to  do  menial  work  for  other  people  in 
order  to  earn  a  support  and  provide  clothing  for  herself  and 
children ;  that  said  defendant  still  refuses  to  provide  anything 
for  the  support  of  the  plaintiff  and  her  children  although  he 
now  is,  and  during  all  of  the  time  they  so  lived  together  was 
abundantly  able  to  do  so. 

404 


BILL   FOR  DIVORCE   FROM   BED  AND  BOARD  No.  8 

VII. 

That  the  said  defendant  is  not  a  proper  person  t<>  have  tin- 
care,  custody  and  education  of  said  minor  children,  (name 
them)  for  the  reason  that  (State  the  reasons). 

VIII. 

That  the  defendant  is  a  man  of  considerable  property  and  is 
the  owner  and  possessed  of  real  and  personal  estate  of  the 

value  of  dollars  as  the  plaintiff  is  informed  and 

believes,  and  that  his  annual  income  is  upwards  of 

dollars  as  she  is  also  informed  and  believes;  and  that  said 
defendant  is  a  strong  healthy  man,  and  abundantly  able  to 
provide  a  suitable  maintenance  for  the  plaintiff  and  said  chil- 
dren, and  that  the  plaintiff  has  no  property  or  income,  of  her 
own,  and  is  now  entirely  dependent  upon  the  charity  of  her 
friends. 

IX. 

The  plaintiff  positively  avers  that  the  acts  done  by  said  de- 
fendant and  herein  charged  as  cause  for  divorce  from  bed  and 
board,  were  all  committed  without  the  consent,  connivance, 
privity  or  procurement  of  the  plaintiff,  and  that  this  bill  is 
not  founded  on  or  exhibited  in  consequence  of  collusion,  agree- 
niynt,  or  understanding  whatever  between  the  parties  hereto 
or  between  the  plaintiff  and  any  other  person,  and  that  she, 
the  plaintiff  has  never  been  guilty  of  any  such  acts  or  miscon- 
duct as  are  herein  charged  against  said  defendant. 

X. 

0 

In  consideration  whereof,  and  inasmuch  as  the  plaintiff  is 
without  remedy  except  in  a  Court  of  equity,  she  prays: 

(a)  That  the  defendant  may  be  required  to  answer  this 
bill  of  complaint,  fully  and  particularly,  but  not  on  oath,  his 
answer  on  oath  being  hereby  expressly  waived. 

(b)  That  a  limited  divorce  from  bed   and  board  forever 
may  be  decreed  between  the  plaintiff  and  the  defendant,  but 
ili.it  the  bonds  of  matrimony  be  not  otherwise  dissolved. 

(c)  That  the  plaintiff  may  have  the  care,  custody  and  cilu- 
cation  of  the  said  minor  children,  the  issue  of  said  marriage, 
until  the  further  order  of  the  Court. 

(d)  That  the  defendant  may  be  decreed  to  pay  to  the  plain- 
till'  such  sum  or  sums  of  money  at  such  times  and  in  such 

405 


NO.  9/  FORMS  IN  DIVORCE  PROCEDURE 

amounts  as  to  this  Honorable  Court  may  seem  proper,  and 
sufficient  to  furnish  a  suitable  support  and  maintenance  for 
the  plaintiff  and  said  children,  and  that  the  same  be  decreed 
to  be  a  lien  on  the  real  estate  of  the  defendant,  unless  other- 
wise secured  as  this  Court  may  direct. 

(e)  That  the  plaintiff  may  have  such  further  or  other  relief 
in  the  premises  as-  shall  be  agreeable  to  equity  and  good  con- 
science. 


Plaintiff. 


Attorney  for  Plaintiff. 
Business  Address  . 


State  of  Michigan 
County  of 

,  the  above  named  plaintiff,  being  duly 

sworn,  deposes  and  says  that  she  has  heard  read  the  foregoing 
bill  of  complaint,  by  her  subscribed,  and  knows  the  contents 
thereof,  and  that  the  same  is  true  of  her  owrn  knowledge,  ex- 
cept as  to  the  matters  which  are  therein  stated  to  be  upon  her 
information  and  belief,  and  as  to  those  matters  she  believes  it 
to  be  true.  Affiant  further  on  oath  states  that  there  is  no 
collusion,  understanding  or  agreement  whatever  between  the 
parties  hereto,  or  between  the  affiant  and  any  other  person  in 
relation  to  her  application  for  divorce. 


Plaintiff. 

Subscribed  and  sworn  to  before  me  this day  of 

.A.  D..-.. 


Notary  Public. 
My  Commission  will  expire 


No.  9.    Bill  for  Divorce  Charging  Conviction  of  a  Felony  and 
Sentence  to  the  State  Prison  for  Three  Years. 

STATE  OF  MICHIGAN. 

To  The  Circuit  Court  For  The  County  of ,  In  Chancery. 

Plaintiff  in  this  suit,  complains  of 

406 


BILL  CHARGING   CONVICTION   OF  A  FELONY  No.  9 

the  defendant    herein,   and  respectfully   represents  unto   this 
Honorable  Court  as  follows: 

I. 

That  she  now  is,  and  for  more  than years  last  past 

has  been  a  resident  of.  and  domiciled  in  the  County  of 

and  State  of  Michigan. 

II. 

That  on  or  about  the day  of A.  I) 

she  was  duly  and  legally  married  to the  defendant 

herein  named,  at .  and  State  of 

and  that  the  name  of  the  plaintiff,  which  she  bore  prior  to  said 
marriage  was 

an. 

That  she  lived   and  co-habited   with  said   defendant   as  his 

wife  from  the  time  of  said  marriage  until  the day  of 

A.  D during  which  time children 

were  born  to  said  parties,  the  issue  of  such  marriage. 

IV. 

That  on  or  about  the day  of A.  D 

at  the of in  the  County  of and  State 

of  Michigan,  at  a  term  of  the  Circuit  Court  for  said  County  of 

Before  the  Honorable Judge  of  said 

Court,  the  said  defendant  was  duly  convicted  of  the  crime  of 
Imrglary,  the  same  being  a  felony  and  punishable  by  imprison 
meiit  in  the  State  Prison,  and  was  then  and  there  by  the  judg- 
ment of  that  Court,  sentenced  to  confinement  in  the  state  pris- 
on  or  penitentiary  of  the  State  aforesaid  for  the  term  of  three 
years,  at  hard  labor,  which  said  sentence  and  judgment  still 
remains  in  full  force  and  effect,  not  reversed,  annulled  or  va- 
eated,  and  not  appealed  from,  and  the  time  for  appealing  there 
from  has  expired,  as  b,y  the  records  and  proceedings  in  said 
Court  now  remaining,  reference  being  thereto  had,  will  more 
fully  appear. 

V. 

The    plaintiff    positively    avers    that  acts  done,  and  herein 
charged,  for  which  divorce  is  sought,  were  all  committed  \\itli 

407 


No.  9  FORMS  IN  DIVORCE  PROCEDURE 

out  the  consent,  connivance,  privity,  or  procurement  of  the 
plaintiff,  and  that  this  bill  is  not  founded  on,  or  exhibited  in 
consequence  of  any  collusion,  agreement,  or  understanding 
whatever,  between  the  parties  hereto,  or  between  the  plaintiff 
and  any  other  person. 

VI. 

In  consideration  whereof,  the  plaintiff  prays : 

(a)  That   the  defendant  herein- 
before named  may  be  required  to  answer  this  bill  of  complaint, 
without   oath,   his    answer   on    oath   being   hereby    expressly 
waived. 

(b)  That  the  marriage'  between  the  plaintiff  and  the  de- 
fendant be  dissolved,  and  a  divorce  from  the  bonds  of  matri- 
mony decreed,  according  to  the  statute  in  such  case  made  and 
provided. 

(c)  That  the  plaintiff  may  by  the  decree  of  this  Honorable 

Court,  be  permitted  to  resume  the  name  of 

which  she  bore  prior  to  said  marriage. 

(d)  That  the  plaintiff  may  have  such  further  or  such  other 
relief  in  the  premises  as  to  the  Court  may  seem  proper  and  as 
shall  be  agreeable  to  equity  and  good  conscience. 


Plaintiff. 


Attorney  for  Plaintiff. 
Business  Address, 


State  of  Michigan 
County  of 

,  the  above  named  plaintiff,  being  duly 

sworn  deposes  and  says  that  she  has  heard  read  the  foregoing 
bill  of  complaint,  by  her  subscribed  and  knows  the  contents 
thereof,  and  that  the  same  is  true  of  her  own  knowledge,  ex- 
cept as  to  the  matters  which  are  therein  stated  to  be  upon  her 
information  and  belief  and  as  to  these  matters  she  believes  it 
to  be  true.  Affiant  further  states  that  there  is  no  collusion, 
understanding  or  agreement  whatever,  between  this  affiant  and 
the  defendant  to  said  bill,  or  between  this  affiant  and  any  other 
person,  in  relation  to  her  application  for  a  divorce. 

Plaintiff. 
408 


BILL    PROCURED    IX    ANOTHER    STATE  No.  10 


Subscribed  and  sworn  before  me  this day  of 

A.  D.  19.. 


Notary  Public. 
My  Commission  will  expire 

No.  10.    Bill  for  Divorce  Procured  by  Defendant  in  Another  State. 
(See  Text,  §397) 

STATE  OF  MICHIGAN. 

To  the  Circuit  Court  for  the  County  of In  Chancery. 

,  plaintiff  in  this  suit,  complains  of 

the  defendant  herein,  and  respectful- 
ly shows  unto  this  Honorable  Court  as  follows: 

I.' 

That  she  now  is.  and  for years  last  past  lias  been 

a  resident  of  and  domiciled  in  the  said  County  of -. . . 

mid  State  of  Michigan. 

II. 

That  on  or  about  the day  of A,  I>. 

she  was  duly  and  legally  married  to 

the  defendant  herein  named,  at  the   of 

in  the  State  of  ,  by 

,  a  minister  of  the  gospel  duly  and 

legally  authorized  to  solemnize  marriages  in  said  state  and 
elsewhere;  and  that  she  lived  and  co-habited  with  said  defend- 
ant as  his  wife  from  the  time  of  said  marriage  until  on  or  about 

the day  of A.  D ,  at  which  time 

Tin-  s.i id  defendant  deserted  the  plaintiff  and  left  the  state  of 
Michigan  as  is  more  particularly  hereinafter  shown. 

III. 

That  during  the  time  said  parties  so  lived  and  co-habited  to- 
gether as  husband  and  wife,  and  up  to  the  time  of  exhibiting 
this.  ili<-  |  il;i  in  tiff's  bill  of  complaint,  she  bore  unto  said  defend- 
ant, as  tho  issue  of  said  marriage children, 

of  whom  are  now  living,  and  whose  names  and  ages  are  as  fol- 
lows :  

409 


Xo.  1(1  FORMS    IN   DIVORCE    PROCEDURE 

I 

IV. 

That  the  said  defendant,  disregarding  the  solemnity  of  his 
marriage  vow,  on  or  about  the  ..........  day  of  ............ 

deserted  and  abandoned  the  plaintiff  withpnt  any  reason  or 
cause  whatever,  and  went  to  the  state  of  ........  ,  and  on  or 

about  the  ...........  day  of  ...........  A.  I)  .......  ,  with- 

out any  valid  reason  or  cause  whatsoever  procured  a  divorce 
from  the  bonds  of  matrimony  from  the  plaintiff  in  this  suit  in 
the  Circuit  Court  for  the  County  of  ..................  ,  and 

State  of  .........  ,  which  said  judgment  or  decree  of  divorce 

from  the  bonds  of  matrimony  was  rendered  by  a  Court  having 
competent  jurisdiction  to  grant  such  decree;  that  said  decree 
of  divorce  is  still  in  full  force  and  effect,  not  annulled,  re- 
versed or  in  any  manner  vacated  and  has  become  absolute  un- 
der the  laws  of  said  state. 


That  the  said  defendant  is  the  owner  of  real  and  personal 
property  in  this  state  and  elsewhere,  which  as  the  plaintiff  is 
informed  and  believes  is  of  the  value  of  ............  dollars 

and  upwards,  and  that  said  defendant  by  fraud  and  misrepre- 
sentation procured  said  decree  of  divorce,  without  any  just 
cause  or  reason  therefor,  and  for  the  express  purpose  of  pre- 
venting the  plaintiff  from  recovering  or  having  any  alimony  or 
support  from  him,  and  for  the  purpose  of  depriving  the  plain- 
tiff of  any  interest  in  his  said  property. 

VI. 

That  the  plaintiff  is  poor  and  has  no  means  of  support  for 
herself  and  children  except  what  little  she  can  earn  at  menial 
labor,  and  although  the  defendant  is  abundantly  able  so  to  do, 
he  neglects  and  refuses  and  for  a  long  period  of  time  has  neg- 
lected and  refused  to  furnish  the  plaintiff  with  any  means  of 
support  whatever  for  the  maintenance  of  herself  and  children, 
and  she  has  been  compelled  to  rely  on  the  charity  of  friends 
to  aid  in  their  care  and  support. 

VII. 

The   plaintiff   further   represents  that  the  defendant  is  the 
owner  of  real  estate  situated  in  the  Township  of  ............ 

County  of  .................  ,  and  state  of  Michigan,  and  par- 

410 


BILL    1'ROCL  Ki;i)    IX     ANOTHER    STATE  No.  10 

ticularly  described  as  follows:  (Describe  the  land  by  govern- 
ment subdivision  or  number  of  lot  if  in  city  or  village,  as  fully 
;is  in  a  deed).  Which  said  real  estate  the  plaintiff  is  informed 
and  believes  is  of  the  value  of dollars  and  up- 
wards. 

VIII. 

The  plaintiff  positively  avers  that  the  acts  done  and  causes 
of  divorce  herein  charged,  and  for  which  divorce  is  sought  were 
all  committed  without  the  consent,  connivance,  privity,  or 
procurement  of  Ihe  plaintiff,  and  that  this  bill  of  complaint  is 
not  founded  on  or  exhibited  in  consequence  of  any  collusion, 
understanding  or  agreement  whatever  between  the  parties 
hereto,  or  between  the  plaintiff  and  any  other  person. 

IX. 

In  consideration  whereof,  and  inasmuch  as  the  plaintiff  is 
without  remedy  in  the  premises,  except  in  a  Court  of  equity, 
she  prays : 

la'i  That  the  said  defendant  may  be  required  to  answer 
this  bill  of  complaint,  fully  and  particularly,  but  not  on  oath, 
his  answer  on  oath  being  hereby  expressly  waived. 

iln     That  the  said  marriage  between  the  plaintiff  and  the, 
defendant  may  be  dissolved,  and  a  divorce  from  the  bonds  of 
matrimony  decreed,  according  to  the  laws  of  the  state  of  Michi- 
gan in  such  case  made  and  provided. 

(c)  That  the  plaintiff  may  have  the  care,  custody  and  edu- 
cation of  said  minor  child until  the  further  order  of  this 

Court. 

(d)  That  the  said  defendant  may  be  required  to  pay  to  the 
plaintiff  such  snm  of  money  as  may  be  necessary  for  the  sup- 
port of  the  plaintiff  and  said  children,  and  that  the  same  be 
decreed  to  be  a  lien  on  the  above  described  land  of  the  defend- 
ant until  paid,  or  otherwise  secured. 

(e^  That  the  plaintiff  may  have  such  further  or  other  re- 
lief in  the  premises  as  shall  be  agreeable  to  equity  and  good 
conscience. 


Plaintiff. 


Attorney  for  1 'lain tiff. 
Business  Address   . 


411 


No.  11  FORMS    IN    DIVORCE   PROCEDURE 

State  of  Michigan 


County  of /  S 

, ,  the  above  named  plaintiff,  being 

duly  sworn  deposes  and  says  that  she  has  heard  read  the  fore- 
going bill  of  complaint,  by  her  subscribed  and  knows  the  con- 
tents thereof,  and  that  the  same  is  true  of  her  own  knowledge, 
except  as  to  the  matters  which  are  therein  stated  to  be  upon 
her  information  and  belief,  and  as  to  those  matters  she  believes 
it  to  be  true.  Affiant  further  on  her  oath  says  that  there  is  no 
collusion,  understanding  or  agreement  between  the  parties 
hereto,  or  between  affiant  and  any  other  person  in  relation  to 
her  application  for  divorce. 


Plaintiff. 
Subscribed  and  sworn  to  before  me  this day  of 


Notary  Public. 
My 'Commission  will  expire 

No.  1 1 .    Bill  by  Wife  for  Refusal  to  Support. 
(See  Text,  §398) 

STATE  OF  MICHIGAN. 

To  the  Circuit  Court  for County. — In  Chancery. 

,   the   plaintiff  in   this   suit,    com- 
plains of ,  the  defendant  herein,  and 

respectfully  represents  unto  this  Honorable  Court  as  follows : 

I. 

That  on  or  about  the day  of A.  D. 

,  at  the of in  the 

State  of ,  she  was  duly  and  legally  married 

to ,  the  defendant  herein  named,  by 

,  a  minister  of  -the  gospel,  duly  and 

legally  authorized  to  solemnize  marriages,  and  that  she  lived 
and  co-habited  with  said  defendant  as  his  wife  from  the  time 

of  such  marriage  until  on  or  about  the day  of 

A.  D ,  at  which  time  she  was  com- 
pelled to  leave  said  defendant  because  of  his  neglect  and  re- 

412 


BILL  BY  WIFE  FOR  REFUSAL  TO  SUPPORT       No.  11 

lus;il  to  furnish  her  \\iili  proper  support  and  maintenance  as  is 
more  particularly  hereinafter  set  forth. 

II. 

That  the  said  plaintiff  now  is,  and  for years  and 

upwards  has  been  a  resident  of  and  domiciled  in  the  said  coun- 
ty of  and  State  of  Michigan,  and  said  defend- 
ant is  a  resident  of  and  domiciled  in  the  County  of 

and  State  of 

III. 

That  during  the  time  she  so  lived  and  cohabited  with  the  de- 
fendant as  his  wife,  she  bore  to  said  defendant,  as  the  issue  of 

said  marriage children, ,  of  whom  are 

now  living  and  whose  names  and  ages  are  as  follows : 


IV. 

That  .for  a  period  of years  and  upwards  next  pre- 
ceding the  time  of  said  separation,  the  said  defendant,  disre- 
garding the  solemnity  of  his  marriage  vow,  neglected  and  re- 
fused to  furnish  the  plaintiff  with  a  proper  means  of  support 
and  maintenance  for  herself  and  said  children,  although  of 
sufficient  ability  so  to  do. 

V. 

That  for  i lie  period  of years  prior  to  the  time  of 

exhibiting  this,  the  plaintiff's  bill  of  complaint,  the  said  de- 
fendant lias  utterly  refused  to  provide  the  plaintiff  with  the 
common  necessities  of  life  and  still  refuses  so  to  do. 

VI. 

That  the  said  defendant  is  strong  and  healthy,  and  possessed 
of  good  natural  abilities,  .and  is  well  aide  to  earn  good  wages 

and  large  sums  of  money  at  his  trade  or  occupation  of 

,  and  that  he  is  possessed  of  both 

real  and  personal  property  from  which  he  realizes  a  good  in- 
come, and  amply  sufficient  to  enable  him  to  furnish  the  plain- 
tiff and  said  children  with  proper  support  and  maintenance, 
but  absolutely  refuses  so  to  do.  That  he  spends  the  most  of 
his  time  with  his  boon  companions  when  not  at  work,  coining 

413 


No.  11  FORMS   IN   DIVORCE   PROCEDURE 

to  his  home  only  occasionally  and  then  staying  only  a  short 
time. 

VII. 

The  plaintiff  further  represents  that  she  is  in  poor  health, 

and  unable  to  do  more  than  to  care  for  her young 

children ;  that  during  the  last months  she  has  been 

obliged  to  rely  on  the-charity  of  friends  and  neighbors  for  the 
common  necessities  of  life;  that  she  is  utterly  destitute  of  the 
common  necessities  of  life,  and  the  said  defendant,  well  know- 
ing the  necessities  of  the  plaintiff,  and  being  abundantly  able 
to  relieve  such  necessities,  utterly  refuses  to  provide  for  the 

plaintiff  and  her  children. 

j 

VIII. 

That  the  defendant  is  the  owner,  and  possessed  of  the  follow- 
ing described  real  estate  as  the  plaintiff  is 

informed  and  believes  of  the  value  of dollars,  and 

of  personal  property  of  the  value  of dollars,  from 

which  he  receives  a  good  income,  and  that  the  plaintiff  has  no 
property  whatever  and  no  income  from  which  to  employ  coun- 
sel and  pay  the  expense  of  prosecuting  this  suit,  and  to  sup- 
port herself  and  children  during  the  pendency  thereof. 

IX. 

The  plaintiff  positively  avers  that  the  acts  done,  and  .cause 
of  divorce  charged  in  this  bill  of  complaint,  for  which  divorce 
is  sought,  were  all  committed  without  the  consent,  connivance, 
privity  or  procurement  of  the  plaintiff,  and  that  this  bill  is 
not  founded  011  or  exhibited  in  consequence  of  any  collusion, 
understanding,  or  agreement  whatever,  between  the  parties 
hereto  or  between  the  plaintiff  and  any  other  person. 


In  consideration  whereof,  and  inasmuch  as  the  plaintiff  is 
without  remedy  in  the  premises,  except  in  a  Court  of  equity, 
she  prays : 

(a)  That  the  defendant  may  be  required  to  answer  this  bill 
of  complaint,  fully  and  particularly,  but  not  on  oath,  his  an- 
swer on  oath  being  hereby  expressly  waived. 

(b)  That  the  marriage  between  the  plaintiff  and  the  de- 
fendant may   be   dissolved,   and  a  divorce  from  the  bonds  of 


BILL  BY   WIFE   FOR  REFUSAL  TO  SUPPORT  No.  11 

matrimony  decreed.  arrordinu  t<>  tin*  -tatute  in  sncli  -ase  made 
and   provided. 

(c)  That  the  plaint  ill  may  have  the  care,  custody  and  edu- 

raiion  of  said  minor  children   and , 

the  surviving  issue  of  said  marriage  until  they  shall  respec- 
tively attain   the  ai;e  of  fourteen  years  and  until  the  further 
order  of  this  Honorable  Court. 

(d)  That  the  Court  may  derive  to  the  plaint  ill'  such  sums 
of    money    as    will    enable  her  to  employ  counsel,  pay  the  ex- 
pense of  prosecuting  this  suit,  and  support  the  plaintiff  and 
said   children  during  the  pendency  thereof. 

(e)  That  on  the  final  hearing  of  this  cause  the  said  defend 
ant  may  be  required,  by  the  order  and  decree  of  this  Honorable 
Court,  to  pay  to  the  plaintiff  such  sums  of  money  as  permanent 
alimony  as  will  enable  the  plaintiff  to  support  herself  and  said 
children  and  that  the  same  be  made  a  lien  on  the  real  estate 
of  said  defendant,  unless  otherwise  secured  in  such  manner  as 
may  be  approved  by  this  Court. 

(f)  That  the  plaintiff  may  have  such  other  or  further  re- 
lief in  the  premises  as  may  be  agreeable  to  equity  and  good 
•  on  science. 


Plaintiff. 


Attorney  for  Plaintiff. 

Business  Address    . 


Stale  of  Michigan 
Count v  of. . 


,  the  above  named  plaintiff,  being 

duly  sworn,  deposes  and  says  that  she  has  heard  read  the  fore- 
going bill  of  complaint  by  her  subscribed  and  knows  the  con- 
tents thereof,  and  that  the  same  is  true  of  her  own  knowledge, 
except  as  to  the  matters  which  are  therein  stated  to  be  upon 
her  information  and  belief,  and  as  to  those  matters  she  believes 
it  to  be  true.  Affiant  further,  on  her  oath  says  that  there  is  no 
collusion,  understanding,  or  agreement  whatever  between  the 
parties  hereto,  or  between  this  affiant  and  any  other  person  in 
relation  to  her  application  for  divorce. 


Plaintiff. 

415 


No.  12  FORMS    IN    DIVORCE    PROCEDURE 

Subscribed  and  sworn  to  before  me  this clay  of . 

A.  D.  19.. 


Notary  Public. 
My  Commission  will  expire 

No.  12.    Bill  to  Annul  Marriage. 

(See  Text,  §403) 

STATE  OF  MICHIGAN. 

To  the  Circuit  Court  for County. — In  Chancery. 

,   plaintiff  in  this   suit,  complains 

of ,   the   defendant  herein,  and  re- 
spectfully represents  unto  this  Honorable  Court,  as  follows : 

I. 

That,  the  said  plaintiff  now  is,  and  for  more  than 

years  last  past  has  been  a  resident  of,  and  domiciled  in  the 
County  of  ,  and  state  of  Michigan. 

II. 

That  on  or  about  the day  of A.  D. 

,  at  the of in  the  State  of 

,  she  was  married  in  form  of  law,  but  not  in 

legal  effect  to  the  defendant  herein 

named. 

III. 

That  at  the  time  of  said  pretended  marriage,  the  said  de- 
fendant represented  to  the  plaintiff  that  he  was  an  unmarried 
man,  and  the  plaintiff  relying  upon  said  representations,  hon- 
estly and  in  good  faith  believed  them  to  be  true  and  that  said 
defendant  was  an  unmarried  man  and  legally  competent  to 
contract  a  lawful  marriage  with  the  plaintiff. 

IV. 

That  the  plaintiff  and  the  defendant  lived  and  co-habited  to- 
gether from  the  time  of  said  marriage  until  on  or  about  the 
day  of A.  D ,  during  all  of 

416 


BILL,    TO    ANNUL    MARRIAGE  No.  12 

which  time  i  lie  plaintiff  honestly  and  in  good  faith  believed 
that  she  was  the  lawful  \vife  of  said  <lefeiiilant. 

V. 

That  on  or  about  the  .    day  of  A.  D. 

tlie  plaintiff  learned  that  the  <iefendant,  at  the  time 

of  his  pretended  marriage  to  the  plaintiff,  had  a  lawful  wife 

then  living  at   ,  in  the  state  of 

whose  name  is    ,  and  who  is  still  living 

at  in  the  state  of ,  and  whose 

marriage  to  the  said  defendant  has  never  been  annulled  or  dis- 
solved, hut  is  still  in  full  force  and  effect,  and  the  said 

is  still  the  lawful  wife  of  the  said  defendant. 

VI. 

That  the  plaintiff  is  informed  and  believes  that  the  said  de- 
fendant was  duly  and  legally  married  to  the  said 

at  the of in  the  State  of 

on  or  about  the day  of A.  D ,  sever- . 

al  prior  to  his  pretended  marriage  to  the  plaintiff 

and  that  as  soon  as  she  learned  of  the  said  former  marriage  of 
said  defendant  and  that  his  lawful  wife  was  still  living  and 
not  divorced  from  him  she  left  the  said  defendant. and  has  not 
since  lived  or  co-habited  with  him. 

VII. 

The  plaintiff  positively  avers  that  the  acts  done,  and  cause 
for  annulment  of  said  pretended  marriage  between  the  plain- 
tiff and  the  defendant,  herein  charged  and  for  which  a  decree 
of  annulment  is  sought,  were  all  committed  without  the  con- 
sent, connivance,  privity  or  procurement  of  the  pTaintiff,  and 
that  this  bill  is  not  founded  on  or  exhibited  in  consequence 
of  any  collusion,  understanding  or  agreement  whatever  be- 
tween the  parties  hereto,  or  between  the  plaintiff  and  any 
other  person. 

VIII. 

In  consideration  whereof,  and  inasmuch  as  the  plaintiff  is 
wit  hour  remedy  in  the  premises,  except  in  a  Court  of  equity, 
she  prays : 

tai  That  the  said  defendant  may  be  required  to  answer 
this  bill  of  complaint,  fully  and  particularly  as  to  all  of  the 

417 


No.  13  FORMS    IN    DIVORCE    PROCEDURE 

matters  and  things  herein  charged,  but  not  on  oath,  his  an- 
swer on  oath  being  hereby  expressly  waived. 

(b)  That  said  pretended  marriage  between  the  plain  tiff 
and  the  defendant,  be  declared  to  be  null  and  void,  and  a  de- 
cree annulling  the  same  entered,  releasing  the  plaintiff  of  and 
from  any  obligation  because  of  the  same. 

(c)  That  the  plaintiff  may  have  such  other  or  further  re- 
lief in  the  premises  as  shall  be  agreeable  to  equity  and  good 
conscience. 


Plaintiff. 


Attorney  for  Plaintiff. 
Business  Address  . 


State  of  Michigan 
County  of M 

,  the  above  named  plaintiff,  being 

duly  sworn  deposes  and  says  that  she  has  heard  read  the  fore- 
going bill  of  complaint  by  her  subscribed,  and  knows  the  con- 
tents thereof,  and  that  the  same  is  true  of  her  own  knowledge, 
except  as  to  the  matters  which  are  therein  stated  to  be  upon 
her  information  and  belief,  and  as  to  those  matters  she  be- 
lieves it  to  be  true.  Affiant  further,  on  oath  says  that  there 
is  no  collusion,  understanding,  or  agreement  between  the 
parties  hereto,  or  between  the  affiant  and  any  other  person  in 
relation  for  application  for  the  annulment  of  the  pretended 
marriage  set  forth  in  said  bill  of  complaint. 


Plaintiff. 

Subscribed  and  sworn  to  before  me  this  ..........  day  of 

..A.  D.  19.. 


Notary  Public. 
My  commission  will  expire 

No.  13.    Bill  to  Affirm  Marriage. 

(See  Text,  §404) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for -County. — In  Chancery. 

418 


BILL  TO  AFFIRM   MARRIAGE  No.  13 

,  plaintiff  in   this  suit,  complains 

of  the  defendant  herein,  and  respectfully  represents  unto  this 
Honorable  Court  as  follows : 

I. 

That  she  now  is,  and  for years  and  upwards  has 

I). en  ;i  resident  of  and  domiciled  in  the  said  County  of 

and  State  of  Michigan. 

II. 

That  on  or  about  the day  of A.  D , 

at  the   of in  the  State  of  Michigan, 

she  was  duly  aud  legally  married  to 

the  defendant  herein  named,  but  not  by  any  formal  ceremony 
of  solemnization  by  a  minister  of  the  gospel  or  other  person 
authorized  by  the  statutes  of  this  state  to  solemnize  marri- 
ages; that  on  the  date  aforesaid  and  at  the  place  aforesaid 
the  plaintiff  and  the  defendant  entered  into  an  agreement, 
each  with  the  other  by  which  the  defendant  solemnly  prom- 
ised and  agreed  to  take  the  plaintiff  as  his  wife,  in  considera- 
tion whereof,  the  said  plaintiff  solemnly  promised  and  agreed 
to  take  the  defendant  as  her  husband,  and  said  parties  then 
and  there  mutually  promised  and  agreed  that  from  thence- 
forth, as  long  as  they  both  should  live,  to  live  and  cohabit 
together  as  husband  and  wife ;  and  from  the  date  aforesaid  the 
said  plaintiff  and  said  defendant  did  live  and  cohabit  together 

as  husband  and  wife  until  on  or  about  the day  of 

A.  D ,  at  which  time  the  said  defendant 

abandoned  the  plaintiff  and  refused  to  longer  live  and  cohabit 
with  her  as  husband  and  wife,  and  then  and  there  informed 
the  plaintiff  that  they  were  never  married,  and  that  she  was 
not  his  wife  and  denied,  and  still  denies  said  marriage,  and 
refused  and  still  refuses  to  recognize  the  plaintiff  as  his  wife. 

III. 

That  during  the  time  said  parties  so  lived  and  cohabited  to- 
gether as  husband  and  wife,  and  up  to  the  time  of  exhibiting 
this  the  plaintiff's  bill  of  complaint,  the  plaintiff  has  borne  to 

the  defendant children of  whom  are  now 

living,  and  whose  names  and  ages  are  as  follows : 

:  that  said  defendant  denies  the  va-" 

lidity  of  said  marriage  and  denies  that  the  plaintiff  has  or 

419 


No.  13  FORMS    IN    DIVORCE    PROCEDURE 

ever  can  have  any  interest  in  his  property,  inchoate  or  other-  \ 
wise,  and  denies  that  said  children  are  his  legitimate  heirs  al- 
though admitting  the  fact  to  be  that  he  is  the  father  of  them, 
but  he  avers  that  they  are  bastards  because  born  of  a  mere- 
tricious connection  and  relation  between  himself  and  the 
plaintiff,  the  father  and  mother  of  said  children. 

IV. 

The  plaintiff  positively  avers  that  at  the  time  she  so  entered 
into  said  contract  and  agreement  of  marriage  with  said  de- 
fendant, he  objected  to  the  solemnization  of  said  marriage  in 
the  form  and  by  the  ceremonies  prescribed  by  the  laws  of  this 
state,  and  assured  the  plaintiff  that  their  agreement  to  take 
each  other  as  husband  and  wife  constituted  such  marriage, 
and  that  the  same  was  in  all  respects  as  lawful  as  though  con- 
summated by  the  usual  marriage  ceremonies  performed  by  a 
minister  of  the  gospel  or  other  person  or  official  lawfully  au- 
thorized to  solemnize  marriages,  which  assurances  the  plain- 
tiff believed  and  relied  on,  or  she  never  would  have  lived  and 
cohabited  with  said  defendant  as  his  wife. 

V. 

And  the  plaintiff  further  alleges  that  she  is  informed  and 
believes  that  the  contract  and  agreement  so  as  aforesaid  made 
between  the  plaintiff  and  the  defendant,  and  their  subsequent 
cohabitation  as  husband  and  wife  in  pursuance  thereof,  con- 
stitutes a  valid  common  law  marriage  between  the  plaintiff 
and  the  defendant,  and  therefore  she  is  the  lawful  wife  of 
said  defendant,  and  her  children  above  named  are  lawful 
issue  of  such  marriage  and  not  bastards  as  claimed  by  said 
defendant  as  hereinbefore  stated. 

VI. 

In  consideration  whereof,  and  inasmuch  as  the  plaintiff  is 
without  remedy  in  the  premises,  except  in  a  Court  of  equity, 
she  prays: 

(a)  That  the  said  defendant  may  be  required  to  answer 
this  bill  of  complaint  and  the  matters  and  things'  herein  al- 
leged, fully  and  particularly,  but  not  on  oath,  his  answer  on 
oath  being  hereby  expressly  waived. 

(b)x  That  this  honorable  court,  by  its  order  and  decree  de- 
clare the  said  contract  and  agreement  so  made  between  the 

420 


CHA^  !  MMOXS  N«».  14 

plaintiff  ami  tin-  defendant,  and  their  subsequent  cohabitation 
as  husband  ami  wife,  (-.institutes  a  valid  marriage,  that  the 
plaintiff  is  the  lawful  wife  of  the  defendant,  that  her  children 
above  named  are  the  legitimate  heirs  of  said  defendant,  and 
that  said  marriage  be  affirmed  in  all  particulars,  as  a  valid 
and  legal  marriage. 

ic  i  That  the  plaintiff  may  have  such  other  or  further  re- 
lief in  til*-  premises  as  may  be  agreeable  to  equity  and  good 
conscience. 




Plaintiff. 


Attorney  for  Plaintiff. 

]>usines«. 


State  of  Michigan 
County  of /  * 

,  the  above  named  plaintiff,  being 

duly  sworn  deposes  and  says  that  she  has  heard  read  the  fore- 
going bill  of  complaint,  by  her  subscribed,  and  knows  the  con- 
tents thereof,  and  that  the  same  is  true  of  her  own  knowledge, 
except  as  to  those  matters  which  are  therein  stated  to  be  upon 
her  information  and  belief,  and  as  to  those  matters' she 
believes  it  to  be  true.  Affiawt  further,  on  oath,  says  that  there 
is  no  collusion,  understanding  or  agreement  whatever  between 
the  parties  hereto,  or  between  the  affiant  and  any  other  person 
in  relation  to  this  application  for  the  affirmance  of  her  mar- 
riage to  the  defendant. 


Plaintiff. 

Subscribed  and  sworn  to  before  me  this  day  of 

A.  D.  19.. 


Notary   Public. 
My  Commission  will  expire 

No.  14.    Chancery  Summons. 

(See  Text,  §4i>: 

STATE  OF  MICHIGAN 

The  Circuit  Court  for   , County. — In  Chancery. 

421 


NO.  15  FORMS     IN     DIVORCE     PROCEDURE 

In  the  name  of  the  People  of  the  State  of  Michigan. 

To  Greeting :  You  are  hereby  notified 

that  a  bill  of  complaint  has  been  filed  against  you  in  the  Cir- 
cuit Court  for  the  County  of in  Chancery,  by  . . .  i . . 

as  plaintiff,  and  that  if  you  desire  to  defend  the  same,  you  are 
required  to  have  your  appearance  filed  in  said  cause,  in  ac- 
cordance with  the  rules  and  practice  of  the  Court,  and  the 
statute  in  such  case  made  and  provided  in  person  or  by  at- 
torney, within  fifteen  days  after  service  of  this  summons 
upon  you. 

Hereof  fail  not,  under  penalty  of  having  said  bill  taken  as 
confessed  against  you. 

The  return  day  of  this  writ  is  the  day  of 

A.  D.  19.... 

Witness  the  Honorable   Circuit  Judge,  at  the 

.  of  .  .  A.  D.  19.. 


Clerk. 

Underwriting :    A  personal  decree  is  sought  against 

the  defendant  and  the  bill  is  filed  to  reach  in- 
terests in  property,  and  for  divorce,  alimony  and  custody  of 
children  as  prayed  for  in  said  bill. 


Attorney  for  Plaintiff. 

Business  Address  

> 

No.  15.     Affidavit  for  Order  of  Publication— Non-resident  De- 
fendant. 

(See  Text,  §40^) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for County. — In  Chancery. 


Plaintiff. 
v. 


Defendant. 

County. — ss. 

of  the  of   being 

duly  sworn  deposes  and  says  that  he  is  the  attorney  for  the 


422 


AFFIDAVIT  FOR  ORDER    OF   PUBLICATION  No.  16 

I'lnintiil  in  tin-  above  entitled  cause,  and  that  he  knows  the 
defendant, above  named,  and  that  said  defend- 
ant is  not  a  resident  of  the  state  of  Michigan,  but  that  he 
resides  at  .  .  in  the  state  of  . 


Attorney  for  Plaintiff. 

Subscribed  and  sworn  to  before  me  this  day  of 

.  A.  D. 


Notary  Public. 
My  Commission  will  expire 

No.  16.     Affidavit  for  Order  of  Publication  When  Process  Cannot 
be  Served. 

Affidavit  for  Order  of  Publication,  where  process  has  been 
issued  and  defendant  is -a  resident  of  This  State,  but  process 
cannot  be  served  by  reason  of  his  absence  from  or  conceal- 
ment within  this  State,  or  by  reason  of  his  continued  absence 
from  his  place  of  residence;  or  that  it  cannot  be  ascertained 
in  what  state  or  country  the  defendant  resides. 

(See  Text,  §408) 
STATE  OF  MICHIGAN. 
The  Circuit  Court  for County. — In  Chancery. 


Plaintiff. 
v. 


Defendant. 

County  of — ss. 

of  the  of  and  State  of 

Michigan,  being  duly  sworn,  deposes  and  says  that  he  is  the 
attorney  for  the  plaintiff  in  the  above  entitled  cause;  that 
the  bill  of  complaint  in  said  cause  was  filed  in  said  Court  on 

the day  of A.  D.  19. . . .,  and  on  the  same 

day  a  Chancery  Summons  for  the  appearance  of  said  defend- 
ant was  duly  issued  out  of  and  under  the  seal  of  said  Court 
returnable  on  the day  of A.  D.  19. . . .,  and 

423 


No.  1C  FORMS    IN    DIVORCE    PROCEDURE 

delivered  to  the  Sheriff  of  said  County  for  service  ou  said  de- 
fendant. 

Deponent  further  says  that  the  said  defendant  is  a  resi- 
dent of  this  State,  that  he  resides  at  the of 

in  the  State  of  Michigan,  and  that  said  chancery  summons 
could  not  be  served  upon  said  defendant  on  or  before  the  re- 
turn day  thereof  for  the  reason  that  during  said  time  the 
said  defendant  was  absent  from  the  State  of  Michigan  (or) 
for  the  reason  that  during  said  time  from  the  date  of  issuing 
said  chancery  summons  until  after  the  return  day  thereof 
the  said  defendant  was  concealed  and  is  still  concealed  within 
the  State  of  Michigan  or  elsewhere,  (or)  for  the  reason  that 
after  diligent  search  and  inquiry  it  cannot  be  ascertained  in 
what  state  or  country  the  defendant  resides. 

Deponent  further  says  that  on  the day  of 

A.  D the  sheriff  of  said  county  returned  said  chan- 
cery summons  with  his  certificate  thereon  endorsed  that  he 
was  unable  to  find  the  said  defendant  in  said  State  of  Michi- 
gan. 


Subscribed  and  sworn  to  before  me  this day  of  ...... 

A.  D.  19.. 


Notary  Public. 
My  Commission  will  expire  

N.  B.  (If  the  order  is  applied  for  on  the  ground  of  the 
defendant  being  concealed,  the  affidavit,  after  stating  his 
residence  as  above,  should  also  state  the  facts  and  circum- 
stances, and  the  source  of  information  which  induces  a  belief 
that  the  defendant  is  concealed,  and  such  facts  and  pircum- 
stances  must  be  such  as  will  satisfy  the  Court  that  the  de- 
fendant is  concealed  and  keeping  out  of  the  way  to  avoid  ser- 
vice of  the  summons.  If  the  order  is  applied  for  on  account 
of  the  continued  absence  of  the  defendant  from  his  place  of 
residence  the  affidavit  should  state  the  length  of  such  ab- 
sence and  the  circumstances  thereof  and  the  exertions  which 
have  been  made  to  find  him.  If  applied  for  because  it  can- 
not be  ascertained  in  what  state  or  country  the  defendant  re- 
sides the  affidavit  should  state  what  efforts  and  inquiry  have 
been  made  to  ascertain  the  fact.) 

424 


OKDKK    UK    PUBLICATION  No.  17 

No.  17.     Order  of  Publication-  Non-resident  Defendant. 

An  1C-.  S.-c.  407. 

STATi:  OF  MICHIGAN. 

The  Circuit   ( 'onrt  for County. — lajChancery. 


Plaintiff, 
v. 


Defendant. 

Suit    pending  in   the  Circuit   Conn    I'm-    Conuty. 

In  Chancery,  on  the   day  of \.   I  >.   1!» 

At,/: in  said  County. 

It  satisfactorily  appearing  to  this  Court  by  affidavit  on  file 
that  the  defendant  .  .^f-y.nr~.  ...  is  not  a  resident  of  the  State 

of  Michigan,  but  resides  at  ' in  the  State  of 

on  motion  of  ^ attorney  for  the  plaintiff.  IT  is 

ORDERED,  that  the  said  defendant cause  his  appear- 
ance to  be  entered  in  this  cause  within  three  months  from 
the  date  of  this  order,  and  in  case  of  his  appearance  that  he 
cause  his  answer  to  the  plaintiff's  bill  of  complaint  to  be  filed. 
and  a  copy  thereof  to  be  served  upon  the  plaintiff's  attorney, 
within  twenty  days  after  sen-ice  on  him  of  a  copy  of  said  bill, 
and  notice  of  this  order,  and  that  in  default  thereof  that  said 
bill  be  taken  as  confessed  by  said  uon-residgut  defendant. 

And  it  is  further  ordered  that  within Jffl&ffafad'dys  after  the 
date  hereof,  the  said  plaintiff  cause  a  notice  or  this  order  to 
be  published  in  the  ^. a  newspaper  printed,  pub- 
lished and  circulating  in  said  County  of  ,  and 

that  such  publication  be  continued  once  in  each  week  for  six        j\ 
successive  weeks-,  or  that  he  cause  a  copy  of  this  order  to  be 
served   personally   on   said  non-resident  defendant,    at    least 
twenty  days  before  the  time  above  prescribed  for  his  appear         >4 
ance:    And  it  is  FURTHER  ORDERED  that  the  said  plaintiff  cause      ,  \i 
a  copy  of  this  order  to  be  mailed  it^/^aid  defendant  at  his 
last  known  post  office  addi'  ^aftered  mail,  and  a  return 

receipt  demanded   at    lea-  'ay*  beloce_tbe_time 

herein  prescribed  for  the  appeanii;.  e  <Vf  the  defendant. 

- 

Circuit  Judge. 


ss  Address **?$ 

<!^fyi» 


*      I 


No.  18  FORMS   IN   DIVORCE   PROCEDURE 

No.  18.     Order  of  Publication — Defendant's  Residence  Unknown 
(See  Text,  §408) 

STATE  OF  MICHIGAN. 

The  iJircuit  Cquri-jfor  the  County  of — In  Chancery. 


Plaintiff. 


Defendant 

Suit  pending  in  the  Circuit  Court  fqr  /f^J^-f^  Coun 
In  Chancery,  on  the  . .  /  o.  . .  day  of  .  Jfcu^r/f  A.  D.  19 
at  A^'ff/A^in  said  County  of 

It  satisfactorily  appearing  to  the  Court  by  affidavit  on  file 
that  a  chancery  summons  has  been  duly  issued  out  of  and 
under  the  seal  of  said  Court,  for  the  appearance  of  said  de- 
fendant therein,  and  that  the  same  could  not  be  served  on 
said  defendant  because  that  after  diligent  search  and  inquiry 
it  could  not  be  ascertained  in  what  state  or  country  the  said 
defendant  resides,  or  the  whereabouts  of  said  defendant  learn- 
ed, and  that  said  chancery  summons  has  been  returned  by  the 
sheriff  of  said  county  with  his  certificate  thereon  indorsed 
that  after  diligent  search  and  inquiry  he  was  unable  to  find 
the  said  defendant  within  the  State  of  Michigan  on  or  before 

the  return  day  of  said  summons,  on  motion  of  

attorney  for  said  plaintiff,  IT  is  ORDERED,  that  the  said  de- 
fendant, JjrfH^-^*-^*'  cause  his  appearance  to  be  entered  in 
this  catfse  within  three  months  after  the  date  of  this  order, 
and  in  case  of  his  appearance  that  he  cause  his  answer  to 
the  plaintiff's  bill  of  complaint  to  be  filed,  and  a  copy  thereof 
served  upon  the  plaintiff's  attorney,  within  twenty  days,  after 
service  on  him  of  a  copy  of  said  bill  and  notice  of  this  order, 
and  that  in  default  thereof  said  bill  be  taken  as  confessed, 
by  said  defendant. 

And  on  like  motion,  IT  is  FURTHER  ORDERED  that  within 
days  after  the  date  hereof,  the  plaintiff  cause  a  notice  of  this 

order  to  be  published  in  the a  newspaper  printed, 

published  and  circulating  in  said.  County  of  ,  and 

that  such  publication  be  continued  at  least  once  in  each  week, 
for  six  weeks  in  succession,  or  that  he  cause  a  copy  of  this 
order  to  be  personally  served  upon  said  defendant,  at  least- 

426 


ORDER  OF  PUBLICATION  No.  19 

t \\enty  days  before  the  time  above  prescribed  for  bis  appear- 
ance. 

And  mi  like  motion,  IT  is  FURTHER  ORDERED,  that  the  said 
plaint  ill'  ranse  a  ropy  of  this  order  to  be  mailed  to  said  de- 
fendant, at  his  last  known  postoffio?  address, 
mail,  and  a  return  receipt  demanded,  -at  least 
days  before  the  date  herein  prescribed  for  his  appearance. 


Circuit  Judge. 


Attorney  for  Plaintiff. 
Business  Address 


i  X.  B. — The  Judicature  Act  of  1915  provides  thai  "In  all 
cases  a  copy  of  such  order  shall  be  mailed^to  said  defendant 
at  his  last  known  postoffice  address  by  registered  mail,  and 
a  return  receipt  demanded,  and  proof  by  affidavit  shall  be  re- 
quired vof  such  mailing,  and  whether  or  not  a  return  receipt 
was  received,  and  if  one  was  received,  it  shall  be  attached  to 
said  affidavit."  The  statute  is  silent  as  to  the  time  when 
such  copy  shall  be  mailed,  but  it  ought  to  be  done  in  time  so 
that  it  will  reach  the  postoffice' to  which  it  is  addressed  at 
least  twenty  days  before  the  time  prescribed  in  the  order  for 
the  appearance  of  the  defendant.  C.  L.  '15,  (12452) ;  Cummins 
&  Beecher's  Michigan  Judicature  Act,  §575. 

No.  19.    Order  of  Publication — Defendant  Concealed. 
(See  Text,  -§408) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  County  of . .». — In  Chancery. 

Plaintiff, 
v. 

Defendant. 

» 

Suit  pending  in  the  Circuit  Court  for County,  on 

the day  of A.  D.  19 

It  satisfactorily  appearing  to  the  Court  by  affidavit  on  file 
that  a  chancery  summons  has  been  issued  out  of  and  under 
the  seal  of  said  Court  for  the  appearance  of  said  defendant 
therein,  and  that  the  same  could  not  be  served  on  or  before  the 

427 


No.  20  FORMS    IN    DIVORCE    PROCEDURE 

return  day  thereof  because  that  the  said  defendant,  being  a 
resident  of  said  State  of  Michigan,  was  concealed  therein  or 
elsewhere,  and  said  chancery  summons  having  been  returned 
with  the  certificate  of  the  sheriff  of  said  County  thereon,  in- 
dorsed showing  that  after  diligent  search  and  inquiry  the  said 
defendant  could  not  be  found  in  said  State  of  Michigan  on  or 

before  the  return  day  of  said  summons,  on  motion  of 

........'..  attorney  for  said  plaintiff,  IT  is  ORDERED,  that  the 

said  defendant  ,  cause  his  appear- 
ance to  be  entered  in  said  Court  and  cause  within  three 
months  after  the  date  of  this  order,  and  that  in  case  of  his 
appearance  he  cause  his  answer  to  the  plaintiff's  bill  of  com- 
plaint to  be  filed,  and  a  copy  thereof  served  upon  the  attorney 
for  the  plaintiff  within  twenty  days  after  service  upon  him 
of  a  copy  of  said  bill,  and  notice  of  this  order,  and  that  in  de- 
fault thereof,  the  said  bill  be  taken  as  cdnfessed  by  said  de- 
fendant. 

And  on  like  motion  it  is  further  ordered  that  within  twenty 
days  after  the  date  hereof,  the  plaintiff  cause  a  notice  of  this 

order  to  be  published  in  the  ,  a  newspaper 

printed,  published  and  circulated  in  said  County  of , 

and  that  such  publication  be  continued  once  in  each  week  for 
six  weeks  in  succession,  or  that  he  cause  a  copy  of  this  order 
to  be  personally  served  upon  said  defendant  at  least  twenty 
days  before  th$  time  herein  prescribed  for  his  appearance. 

And  on  like  motion  IT  is  FURTHER  ORDERED,  that  the  said 
plaintiff  cause  a  copy  of  this  order  to  be  mailed  to  said  defend- 
ant at  his  last  known  post  office  address,  by  registered  mail, 
and  a  return  receipt  demanded,  at  least days  be- 
fore the  time  herein  prescribed  for  the  appearance  of  said  de- 
fendant. 


Circuit  Judge. 
Attorney  for  Plaintiff. 


Business  Address 


No.  20.    Notice  of  Appearance  of  Defendant. 
(See  Text,  §410.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court   for    County. — In   Chancerv. 

•  i\ 

428 


MOTION  TO  DISMISS  No.  21 

Plaintiff. 


V. 


Defendant. 

Take  Notice,  That  the  defendant  in  the  above  entitled  cause 
hereby  appears  therein,  and  demands  a  copy  of  the  plaintiff's 
bill  of  complaint. 


Attorney  for 

Business  Address  

Dated 19 

To 

Attorney  for  Plaintiff. 

No.  21.     Motion  to  Dismiss. 

(See  Text,  §413.) 

STATE  OF  MICHIGAN. 

The  Circuit  Couift  for   County. — In  Chancery. 


Plaintiff, 
v. 


Defendant. 

Now  comes  the  above  named  defendant,  

by  his  attorney  and  moves  the  Court 

for  an  order  dismissing  the  bill  in  the  above  entitled  cause 
for  the  following  reasons: 

1st.     For  the  reason  that 

•Jnd.  For  the  reason  that  the  plaintiff  has-  not  in  and  l>v 
said  bill  stated  or  set  forth  such  a  state  of  facts  as  entitles 
to  the  relief  therein  prayed. 

3d 

This  motion  is  based  upon  the  affidavit  of 

herewith  filed,  and  upon  the  files  and  records  in  said  Court 
and  cause. 

(Or  upon  the  petition  of  the  defendant  hereto  annexed  and 
herewith  filed). 

429 


No.  22  FORMS   IN   DIVORCE   PROCEDURE 

Dated  . 


Attorney  for  Defendant. 
To Attorney  for  Plaintiff. 

Take  notice  that  the  foregoing  is  a  true  copy  of  a  motion 
to  dismiss  the  bill  of  complaint  in  the  above  entitled  cause  and 
of  the  affidavits  upon  which  the  same  is  based,  and  that  the 
same  will  be  brought  on  for  hearing  before  said  Court  on  the 

day  of  A.  D.  19 ,  at  the  Court 

House  in  the   of   at  

o'clock  in  the  forenoon. 

Dated  . 


Attorney  for  Defendant. 

No.  22.    Order  Pro  Confesso  for  not  Appearing. 
(See  Text,  §414.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  For County. — In  Chancery. 


Plaintiff, 
v. 


Defendant. 
/ 
On  filing  due  proof  of  the  personal  service  of  the  summons 

heretofore  issued  in  the  above  entitled  cause,  upon  the  defend- 
ant   ,  on  or  before  the  return  day  thereof, 

and  more  than  fifteen  days  having  elapsed  since  the  time  of 
such  service,  and  the  said  defendant not  having  ap- 
peared in  said  cause  as  shown  by  the  records  and  files  of  this 

Court,  and  the  affidavit  of on  file  in  said  Court  and 

cause ; 

On  motion  of ,  attorney  for  the  plaintiff,  IT  IS 

ORDERED,  that  the  bill  of  Complaint  filed  in  this  cause  be, 
and  the  same  hereby  is  taken  as  confessed  by  said  defendant, 
and  that  the  proofs  in  said  cause  be  taken  in  open  Court  as  in 
an  action  at  law. 

Dated.. 


Attorney  for  Plaintiff. 
Clerk. 


430 


1'HO    COM  i  .No.  1' 1 

No.  23.     Order  Pro  Confesso  for  not  Answering. 

(See  Text,  §415.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for   County. — In  Chancery. 


Plaintiff. 
v. 


Defendant. 

On  filing  due  proof  of  the  personal  service  of  tin-  summon- 
heretofore  issued  in  the  above  entitled  rauve.  upon  the  defend- 
ant   ,  on  or  before  the  return  day 

thereof,  and  of  the  appearance  of  the  defendant,  and  that  a 

copy  of  the  bill  of  complaint  was  duly  served  on 

,  attorney  for  said  defendant  within  fifteen 

days  after  notice  of  the  appearance  of  said  defendant,  and 
that  more  than  fifteen  days  have  elapsed  since  the  service  of 
said  copy  of  said  bill,  and  that  the  defendant  has  not  caused 

his  answer  to  be  filed  and  served.  On  motion  of 

Attorney  for  the  plaintiff,  it  is  ORDERED,  that  the  bill  of 
complaint  in  this  cause  be.  and  the  same  hereby  is  taken  as 
confessed  by  said  defendant. 

And  on  'like  motion  it  is  further  ORDERED  that  the 
proofs  in  said  cause  be  taken  in  open  Court  as  in  an  action  at 
law. 

Dated   . 


Attorney  for  Plaintiff. 
Clerk.' 


No.  24.     Order  Pro  Confesso  Defendant  Brought  in  by  Publi- 
cation. 

(See  Text,  §415.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  For  .  .  County. — In  Cham-ei-v. 


Plaintiff. 
v. 


Defendant. 

431 


No.  25  FORMS  IN  DIVORCE  PROCEDURE 

Suit  Pending  in  the  Circuit  Court  For County, 

In  Chancery  on  the day  of A.  D.  19 

On  filing  due  proof  of  Publication  of  notice  of  the  order 
heretofore  made  in  said  cause,  requiring  the  defendant  ....... 

to  enter  his  appearance  therein  and  answer  the  bill  of  com- 
plaint filed  in  this  cause  within  three  months  from  the  date  of 
said  order,  and  the  time  limited  in  said  order  for  the  entering 
of  such  appearance  having  expired,  and  on  filing  due  proof 
that  said  defendant has  not  appeared  in  said  cause ; 

On  motion  .of Attorney  far  the  plaintiff,  it  is 

ORDERED  that  the  said  bill  of  complaint  be,  and  the  same 
hereby  is  taken  as  confessed  by  said  defendant. 

And  on  like  motion,  it  is  further  ORDERED  that  the  proofs 
in  said  cause  be  taken  in  open  Court  as  in  an  action  at  law. 


Attorney  for  Plaintiff. 
Clerk. 


No.  25.    Affidavit  of  Non- Appearance. 

'(See  Text,  §414.) 

STATE  OF  MICHIGAN, 

The  Circuit  Court  For County. — In  Chancery. 


Plaintiff, 
v. 


Defendant. 

County,  ss. 

of being  duly  sworn  says  that  he 

is  the  attorney  for  the  plaintiff  in  the  above  entitled  cause, 
and  that  the  bill  of  complaint  was  filed  in  said  cause  on  the 

day  of A.  D.  19 ;  that  on  the  same 

day  a  chancery  summons  was  duly  issued  out  of  and  under 
the  seal  of  said  Court  and  was  personally  served  upon  said  de- 
fendant   on  the day  of 

A.  D.  19 . . . . ,  as  appears  by  proof  of  service  thereof  on  file  in 
said  Court  and  cause,  and-  that  although  more  than  fifteen 
days  have  elapsed  since  such  service  this  deponent  has  not  re- 
ceived any  notice  that  an  appearance  for  said  defendant  has 
been  filed  in  said  cause  by  or  on  behalf  of  the  said  defendant 

432 


AFFIDAVIT   OF   DEFAULT   FOH    WANT  OF   ANSWER         No.  26 

and  that  the  said  defendant  has  not  caused  his  ;ip- 

pea  ra  lire  to  be  entered   in  said  Court  and  ranse  as  appears  by 
the  files  and  records  in  said  Court  and  cause. 


Subscribed  and  Sworn  to  Before  me  This  I  >a\   of 

A.  D.  19.. 


Notary  Public. 
.My  ( 'oniniission   will  expire 

No.  26.     Affidavit  of  Default  for  Want  of  Answer. 
(See  Text,  §415.) 

STATE"  OF  MICHIGAN. 

The'Circuit  Court  For County. — In  Chancery. 

I'laiiTtiff. 
v. 


Defendant. 

County  of  ,  ss of  

being  duly  sworn  deposes  and  says  that  he  is  the  attorney  for 
the  plaintiff  in  the  above  entitled  cause,  and  that  on  the  .... 
day  of A.  D the  defendant  entered  his  ap- 
pearance therein  by  .' his  attorney,  and  de- 
manded a  copy  of  the  bill  of  complaint ;  that  afterwards  on 

the day  of A.  D.  19. ...  this  deponent 

served  a  copy  of  said  bill  of  complaint    personally    on    said 

'attorney  for  said  defendant,  and  that  although 

more  than  fifteen  days  have  elapsed  since  such  service,  this  de- 
ponent has  not  received  any  copy  of,  or  notice  of  filing  of  any 
motion  to  dismiss,  or  answer  1o  said  bill  by  or  on  behalf  of 

the  defendant ;  and  that  the  said  defendant 

has  not  filed  any  motion  to  dismiss  or  answer  to  said  bill  as 
appears  by  the  files  and  records  of  said  Court  and  eanse. 


Subscribed  and  Sworn  to  Before  me  this day  of 

A.  D.  19.. 


Notary  Public. 
My  Commission  will  expire 

433 


FORMS    IN    DIVORCE    PROCEDURE 

No.  27.     Supplemental  Bill. 

(See  Text,  §424.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  For  the  County  of In  Chancery. 

To  the  Court :— 

Plaintiff  in  this  suit  respectfully  represents  unto 

this  Honorable  Court  as  follows: 

I. 

That  on  the day  of A.  D.  19 he  exhibited 

his  bill  of  complaint  in  this  Court  against 

the  defendant  thereby  praying  that  the  bonds  of  matrimony 
between  said  plaintiff  and  said  defendant  be  dissolved  and  a 
divorce  from  the  bonds  of  matrimony  decreed,  for  the  reasons 
as  set  forth  in  said  bill  that  the  said  defendant  had  deserted 
and  abandoned  the  plaintiff  against  his  will  and  consent  and 
that  such  desertion  and  abandonment  had  continued  for  more 
than  two  years  next  preceding  the  time  of  exhibiting  said  bill 
of  complaint. 

II. 

That  on  the day  of A.  D.  19 the  said 

defendant   appeared  in  said  cause  by   

her  attorney  and  filed  her  answer  to  said. bill  denying  said  de- 
sertion charged  in  said  bill,  as  by  the  files  and  records  in  said 
Court  and  cause  will  more  fully  appear:  which  said  cause  is 
still  pending  and  undetermined  in  this  Court. 

III. 

The  plaintiff  further  shows,  by  way  of  supplement  that 
since  the  filing  of  said  bill  of  complaint  and  the  defendant's 
answer  thereto,  the  said  defendant,  further  disregarding  her 
marriage  vow  and  obligation,  did  commit  adultery  and  have 

illicit    carnal   intercourse   with    one    . , on 

the day  of  A.  D at  the 

of in  the  State  of 

\ 
IV. 

Inasmuch  therefore  as  the  plaintiff  is  without  remedy  in 
the  premises,  except  in  a  Court  of  Equity,  he  prays : — 

(a)     That  the  defendant may  be  required  to  an- 

434 


PETITION  I'Oll  LEAVE  TO  FILE  SUPPLEMENTAL  BILL        No.  28 

swer  this  bill  of  complaint  fully  and  particularly,  but  not  on 
oath,  her  answer  on  oath  being  hereby  expressly  waived. 

(bj  That  this,  the  plaint  ill's  bill  of  complaint  may  be 
deemed  and  taken  as  and  for  a  bill  of  supplement  to  his  said 
original  bill. 

(c)     That  the  plaintiff  may  have  such  other  or  further  i« 
lief  in  the  premises  as  shall  be  agreeable  to  equity  and  good 

conscience.  

Plaintiff. 


Attorney  for  Plaintiff. 
Business  Address . . 


State  of  Michigan 
.County  of  

,  the  above  named  plaintiff  being  duly  sworn 

deposes  and  says  that  he  has  heard  read  the  foregoing  supple- 
mental bill  by  him  subscribed  and  knows  the  contents  thereof, 
and  that  the  same  is  true  of  his  own  knowledge,  except  as  to 
those  matters  which  are  therein  stated  to  be  upon  his  informa- 
tion and  belief  and  as  to  those  matters  he  believes  it  to  be 
true.  Affiant  further  on  oath  says  that  there  is  no  collusion 
understanding  or  agreement  between  the  parties  hereto,,  or  be- 
iween  this  affiant  and  any  other  person,  in  relation  to  his 
application  for  a  divorce,  or  in  relation  to  the  matters  charged 
in  this  his  supplental  bill. 


Plaintiff. 

Subscribed  and  sworn  to  before  me  this day  of 

A.  D.  19.. 


Notary  Public. 
My  Commission  will  expire 

No.  28.    Petition  for  Leave  to  File  Supplemental  Bill. 
(See  Text,  §427.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  For County,  In  Chancery. 


Plaintiff, 
v. 


Defendant. 

435 


No.  28  FORMS    IX    DIVORCE    PROCEDURE  ( 

To  the  Court : 

The  petition  of   ,  the  above  named  plaintiff 

respectfully  represents  unto  this  Honorable  Court  as  follows: 

I. 

That  on  the day  of A.  D he 

filed  his  bill  of  Complaint  in  this  Court  against  the  above 
named  defendant praying  that  the  marriage  be- 
tween the  plaintiff  and  the  defendant  be  dissolved  and  a  di- 
vorce from  the  bonds  of  matrimony  decreed,  for  the  reason  that 
the  defendant  had  deserted  and  abandoned  the  plaintiff  against 
his  will  and  consent,  and  that  such  desertion  and  abandon- 
ment had  continued  for  more  than  two  years  next  preceding 
the  time  of  exhibiting  said  bill  of  complaint. 

II. 

The  plaintiff  further  represents  that  after  the  filing  of  said 

bill  of  complaint,  and  on  the   the   day  of 

A.  D.  19 ....   the  said  defendant  duly  appeared  in 

said  cause  by   her  attorney  and  answered  said 

bill,  denying  said  charge  of  desertion,  and  that  said  cause  is 
still  pending  and  undetermined  in  this  Court. 

III. 

That  after  the  filing  of  said  bill  and  the  answer  thereto, 

the  said  defendant   disregarding  the  solemnity 

of  her  marriage  vow  and  obligation  did  commit  adultery  and 

have  illicit  carnal  intercourse  with  one at  the 

of in  the  state  of •*-. 

IV. 

That  by  reason  of  the  said  offense  of  adultery  having  been 
committed  after  the  filing  of  said  bill  and  answer,  the  same 
cannot  be  relied  on  by  said  plaintiff  as  a  ground  of  divorce  in 
said  cause  unless  the  said  plaintiff  is  permitted  to  file  a  sup- 
plemental bill  setting  forth  the  commission  of  said  offense  by 
said  defendant,  and  your  petitioner  is  advised  that  it  is  neces- 
sary to  file  a  supplemental  bill  of  complaint  in  this  cause. 

.Your  petitioner  therefore  prays  that  an  order  may  be  made 
and  entered  by  this  honorable  Court  permitting  the  plaintiff 

436 


\oTiri:     <>l      APPLICATION  No.  29 

to  tilr  a  supplemental  hill  against  said  defendant  charging 
said  act  of  adultery  as  hereinl»efore  set  forth  as  an  additional 
cause  of  divorce,  and  that  your  petitioner  may  have  such  other 
or  further  relief  in  the  premises  as  shall  be  agreeable  to  equity 
and  good  conscience. 


Attorney  for  Plaint  ill. 
State  of  Michigan 


County  of 

,  the  above  named  petitioner  being  duly  sworn 

deposes  and  says  that  he  has  heard  read  the  foregoing  peti- 
tion by  him  subscribed  and  knows  the  contents  thereof,  and 
that  the  same  is  true  of  his  own  knowledge,  except  as  to  those 
matters  which  are  therein  stated  to  be  upon  his  information 
and  belief  and  as  to  those  matters  he  believes  it^  to  be  true. 


Subscribed  and  sworn  to  before  me  this day  of  ~. 

A.  D.  19.. 


Notary    iMildic. 
My  Commission  will  expire 

No.  29.     Notice  of  Application. 

To   » , 

Attorney  for  Defendant. 

Take  Notice,  that  the  foregoing  is  a  true  copy  of  a  petition 
filed  in  the  above  entitled  cause,  and  that  the  same  will  be 

brought  on  for  heiring  before  said  Court  on  the day 

of A.  D.  19 at  the  Court  house  in  the of 

in  said  County,  at o'clock  in  the noon, 

and  a  motion  ihereuj made  that  the  prayer  of  said  petition 

be  granted. 


Attorney  for  Plaintiff. 
Dated  .  ,.19.. 


437 


No.  29a  FORMS  IN  DIVORCE  PROCEDURE 

No.  29a.     Order  Granting  Leave  to  File  Supplemental  Bill. 
(See  Text,  §427.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for County. — In  Chancer}^. 


Plaintiff, 
v. 


Defendant. 

At  a  session  of  said  Court  held  at  the  Court  House  iu  the 

of  . . . : in  said  Countv,  on  the  ........ 

day  of  A.  D.  19 ; 

Present  Hon Circuit"  Judge. 

On  reading  and  filing  the  petition-  of ,  the 

plaintiff  in  the  above  entitled  cause,  praying  for  reasons  there- 
in stated,  that  an  order  may  be  made  in  said  cause  allowing 
said  plaintiff  to  file  a  supplemental  bill  in  said  cause,  on  mo- 
tion of  ,  attorney  for  said  plaintiff  it  is 

ORDERED  that  the  prayer  of  said  petition  be  granted,  and 

that  said  plaintiff  may  file  such  supplemental  bill  within 

days  after  the  date  of  this  order,  and  not  afterwards. 

It  is  further  ordered  that  said  plaintiff  cause  a  copy  of  this 

order  and  of  said  supplemental  bill  to  be  served  upon 

,  the  attorney  for  said  defendant  within  days 

after  the  date  of  this  order;  and  that  said  defendant  cause  her 
answer  to  said  bill  to  be  filed  and  served  within  fifteen  days 
after  service  of  a  copy  of  this  order  and  of  said  supplement 
bill  upon  her  said  attorney. 


Attorney  for  Plaintiff. 

Circuit  Judge. 
No.  30.    Answer — General  Form. 

(See  Text,  §418.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for County. — In  Chancery. 


Plaintiff, 
v. 


Defendant. 
438 


MKAL    FORM    OF    ANSWER  No.  30 

The  answer  of   ,  the  above  named  defendant, 

to  tin;  bill  of  complaint  of the  above  named 

plaintiff. 

This  defendant  saving  and  reserving  all  benefit  of  objection 
and  exception  to  said  bill  of  complaint,  for  answer  thereto,  or 

to  so  much  thereof  as is  advised  it  is  necessary 

for ' to  answer,  says : 

FIRST,  To  the  first  paragraph :  ...  .he  admits  the  marriage 
between  said  parties  at  the  time  and  place  as  set  forth  in  said 
bill. 

SECOND,  To  the  second  paragraph :   admits  that 

during  the  time  said  parties  lived  and  cohabited  together  as 
husband  and  wife,  there  were  born  as  the  issue  of  said  mar- 
riage    children  whose  names  and  ages  and  places  of 

residence  are  as  set  forth  in  said  bill. 

THIRD,  To  the  third  paragraph:  He  neither  admits  or 
denies  the  allegations  therein  contained,  for  the  reason  that 
he  has  no  knowledge  or  information  on  those  subjects,  except 
as  he  is  informed  by  said  bill,  and  he  therefore  leaves  said 

plaintiff  to  make  such  proof  thereof  as  may  be  ad 

vised   is  necessary  for to  make. 

FOURTH,  To  the  fourth  paragraph:  he  denies  that  on  or 

about  the  day  of  at  the  City  of 

-. or  at  any  other  time  or  place   lie   com 

milled   adiillei-v    and   had   illicit  carnal   intercourse  with  one 


(Answer  specifically  each  and  every  paragraph  of  tho  bill  by 
either  admitting  or  denying  the  same  or  by  disclaiming  knowl- 
edge or  information  sufficient  to  form  a  belief,  and  conclude  as 
follows,  i 

And  the  said  defendant  further  says  that  the  matters  and 
things  alleged  and  set  forth  in  said  bill  of  complaint  are  not 
sufficient  in  law  to  entitle  the  said  plaintiff  to  the  relief  therein 
prayed,  and  .  . .  .he  prays  that  the  same  may  be  dismissed  with 
costs  in  favor  of  said  defendant. 


Defendant. 


Attorney  for  Defendant. 
(If  the  bill  requires  an  answer  on  oath  add  jurat  as  follows. ) 

State  of  Michigan  *  1 

County  of f  ' 

,  the  above  named  defendant,  being 

439 


No.  31  FORMS   IX   DIVORCE   PROCEDURE 

duly  sworn  deposes  and  says  that  he  has read  the  fore- 
going answer  by  him  subscribed  and  knows  the  contents 

thereof,  and  that  the  same  is  true  of own  knowledge, 

except  as  to  the  matters  which  are  therein  stated  to  be  upon 
information  and  belief,  and  as  to  those  matters  he  be- 
lieves it  to  be  true. 


Subscribed  and  sworn  to  before  me  this  day  of 

,  A.  D.  19 


Notary  Public. 
My  Commission  expires  

No.    31.    Answer  and  Cross-Bill. 

(See  Text,  §420.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  County. — In  Chancery. 


Plaintiff, 
v. 


Defendant. 

The  answer  of  ,  the  above  named  defend- 
ant to  the  bill  of  complaint  of ,  the  above 

named  plaintiff. 

This  defendant  saving  and  reserving  all  benefit  of  objection 
and  exception  to  the  said  bill,  for  answer  thereto,  or  to  such 
parts  thereof  as  he  is  advised  it  is  material  or  necessary  for 
him  to  answer,  says: 

FIRST,  To  the  first  paragraph:  admits  the  mar 

riage  of  said  parties  at  the  time  and  place  as  set  forth  in  said 
bill. 

SECOND,  To  the  second  paragraph :  admits  that 

said  parties  lived  and  cohabited  together  as  husband  and  wife 

from  the  time  of  said  marriage  until  on  or  about  the 

day  of  A.  D.  19. ...  but  he  denies  that  the  said 

plaintiff  left because  of  cruel  and  inhuman  treat- 
ment, as  set  forth  in  said  bill ; alleges  that  the  said 

plaintiff  abandoned  and  deserted  this  defendant  without  any 
reason  or  cause  whatsoever,  and  entirely  against  the  wish  of 
this  defendant,  and  said  abandonment  and  desertion  has  con- 

440 


A\S\VI:I:  AMI  ruoss-BiLL  No.  31 

finned  for  a  period  of  .  ...T years  and   still  continues. 

although   ihis  defendant   has  often  requested  said   plaintiff  to 

return  an<l   resume  her  marital  duties  as  the  .' of 

this  defendant. 

THIRD,  To  the  third  paragraph:  This  defendant  admits 
that  during  the  time  .-aid  parties  so  lived  and  cohabited  to 
Aether  as  husband  and  wife  there  were  born  as  the  issue  of  said 

marriage children  whose  names  and  ages  are  as  set 

forth   in  *aid  bill. 

FOURTH,  To  the  fourth  paragraph:  This  defendant  says 
that  he  has  no  knowledge  or  information  sufficient  to  form  a 
belief,  as  to  the  matters  and  things  alleged  and  set  forth  in 
said  fourth  paragraph,  except  as  he  is  informed  by  said  bill,  and 
for  want  of  such  knowledge  and  information  he  neither  admits 
nor  denies  the  same,  but  leaves  said  plaintiff  to  make  such 

proof  thereof  as may  be  advised  it  is  material  or 

neressary  for to  make. 

FIFTH,  To  the  fifth  paragraph :  This  defendant  denies  that 

on  or  about  the .«. .  day  of A.  D.  19. ...  at 

_. or  at  any  other  time  or  place  he  was  guilty 

of  extreme  cruelty  toward  said  plaintiff,  and  he  denies  each 

and  every  allegation  of  cruelty  alleged  in  said  bill; he 

denies  that  on  the day  of A.  D.  10 

he  used  vile,  profane  or  obscene  language  toward  said  plain- 
tiff:   denies  that ever,  at  any  time  or  place. 

•  luring  the  time  said  parties  lived  together    struck 

said  plain  till'  or  otherwise  misused  her;  but  on  the  contrary  he 
avers  that  he  always  treated  said  plaintiff  with  kindness  and 
consideration,  and  performed  all  of  his  marital  duties,  and 
furnished with  a  good  home,  to  the  best  of  his  ability. 

(Either  admit  or  deny  each  allegation  of  the  bill,  or  state 
facis  in  justification,  or  disclaim  knowledge  or  information, 
and  conclude  as  follows:) 

And  this  defendant  says  that  the  said  plaintiff  is  not  en- 
titled to  the  relief  prayed  for  in  said  bill  and  he  prays  that  the 
same  .may  l>e  dismissed. 

OND    1'IVISIOX.     CROSS  -P.M. I.. 

I. 

This  defendant,  for  the  purpose  of  obtaining  affirmative  re 
lief,  in  accordance  with  the  rule  and  practice  of  this  court, 
lespect fully  represents  unto  this  honorable  court  as  follows: 

441 


No.  31  FORMS   IN    DIVORCE    PROCEDURE 

II. 

That  on  or-  about  the day  of  A.  D. 

18 he  was  duly  and  legally  married  to  said  plaintiff,  by 

,  a  minister  of  the  gospel,  duly  and  legally 

authorized  to  solemnize  marriages,  at  the   of 

in  the  State  of    ,  and 

that  said  parties  lived  and  cohabited  together  as  husband  and 
wife  from  the  time  of  said  marriage  until  on  or  about  the 

day  of A.  D at  which  time  the 

said  plaintiff  deserted  this  defendant,  as  is  more  particularly 
hereinafter  set  forth. 

III. 

That  said  defendant  now  is  and  for years  and 

upwards  has  been  a  resident  of  »  . .  in  the  State  of 

Michigan,  and  now  resides  at   in  the  State  of 

Michigan. 

IV. 

That  during  the  time  said  parties  so  lived  and  co-habited  to- 
gether as  husband  and  wife  there  were  born  to  them  as  the 

issue  of  said  marriage children  whose  names  and 

ages  are  as  follows of  whom  are  now  living. 

(Give  name  and  age  of  each  child  living  at  the  time). 

V. 

That  on  or  about  the  day  of A.  D. 

the  said  plaintiff  without  any  reason  or  cause  what- 
soever, and  against  the  will  of  this  defendant,  wholly  deserted 
and  abandoned  this  defendant,  and  said  desertion  and  aband- 
onment has  continued  for years  and  upwards,  and 

still  continues,  although  this  defendant  has  frequently  re- 
quested said  plaintiff  to  return  to  said  defendant,  which  re- 
quest she  has  hitherto  refused  and  still  refuses. 

VI. 

And  this  defendant  positively  avers  that  the  acts  done  and 
causes  for  divorce  herein  charged,  for  which  divorce  is  sought 
were  all  committed  without  the  consent,  connivance  privity  or 
procurement  of  this  defendant,  and  that  this  cross  bill  is  not 

442 


ANSWER  AND  CROSS-BILL  No.  31 

founded  on  or  exhibited  in  consequence  of  any  collusion. 
agreement  or  understand  in-;  whatever  between  the  parties 
hereto,  or  between  tliis  defendant  and  any  other  person. 

Mi  In  consideration  whereof,  and  to  the  end.  therefore. 
that  the  said  plaintiff,  if can  show  why  this  de- 
fendant should  not  have  the  relief  herein  prayed,  may,  with- 
out oath,  (Answer  on  oath  being  hereby  expressly  waived), 

and  according  to  the  best  of knowledge,  remembrance. 

information  and  belief,  full,  true,  direct  and  perfect  answer 
make  to  all  and  singular  the  matters  and  things  herein  stated 
and  charged. 

(2)  and  that  the  marriage  between  this  defendant  and  the 
said  plaintiff  may  he  dissolved,  and  a  divorce  from  the  bonds 
of  matrimony  decreed,  according  to  the  statute  in  such  case 
made  and  provided. 

(3)  And  that  this  defendant  may  have  such  other  relief, 
and  such  further  relief  in  the  premises,  as  to  this  Honorable 
Court  may  seem  proper  and  as  shall  be  agreeable  to  equity 
and  good  conscience. 


State  of  Michigan 
County  of J  * 

On  this clay  of A.  D.  19. ...  before  me  a 

Notary (  Public,  in  and  for  said  County  and  state  personally 

came  the  above  named  defendant  who  being  duly 

sworn  by  me  says,  that  he  has  heard  read  the  foregoing  answer 
and  cross  hill  by  him  subscribed,  and  knows  the  contents 
thereof,  and  that  the  same  is  true  of  his  own  knowledge,  ex- 
cept as  to  the  matters  which  are  therein  stated  to  be  upon 

information  and  belief,  and  as  to  those  matters  .... 

believes  it  to  be  true;  and  further  that  there  is  no  collusion, 
understanding  or  agreement  whatever,  between  the  parties 
herein  named  in  re-aid  to  this  application  for  a  divorce. 


Defendant. 

Subscribed  and  sworn  to  before  me  this  day  of 

.  A.  D.  19.. 


Notary  Public. 
My  <  'niiiinission  expires    


443 


No.  32  FORMS    IN    DIVORCE    PROCEDURE 

No.   32.    Petition  for  Reference  to   a  Commissioner  to  Take 
Proofs. 

(See  Text,  §432.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  County  of  . . .  t ,  In  Chancery. 


Plaintiff, 
v. 


Defendant. 
To  the  Court: 

The  petition  of ,  the  above  named  plaintiff, 

respectfully  represents  unto  this  honorable  court  as  follows: 

I. 

That  on,  to- wit ;  the day  of A.  D. 

19 a  decree  was  entered  in  the  above  entitled  court  .and 

cause,  dissolving  the  marriage  between  the  -said  parties,  for 
reasons  and  causes  set  forth  in  said  decree,  as  in  and  by  said 
decree,  now  on  file  in  said  court,  and  to  which  reference  is 
hereby  made,  will  more  fully  appear. 

II. 

That  in  and  by  said  decree,  the  question  of  the  amount  of 
alimony  to  be  allowed  to  your  petitioner  was  reserved  by  said 
court  for  further  directions,  after  proof  of  the  extent  and  value 
of  the  property  of  the  said  defendant,  and  of  the  necessities  of 
your  petitioner,  should  be  taken. 

III. 

That  it  will  be  very  inconvenient  and  expensive  to  procure 
the  attendance  of  all  of  the  witnesses  at  the  same  time  in  open 
court,  to  givje  their  testimony,  and  it  will  be  much  more  con- 
venient and  less  expense  to  take  their  testimony  before  a 
circuit  court  commissioner  from  time  to  time,  and  within  a 
reasonable  time,  to  suit  the  convenience  of  said  witnesses  and 
commissioner,  and  have  the  same  duly  reported  to  this  court. 


IV. 

Your  petitioner  therefore  prays  that  an  order  may  be  en- 

4 


ri:imo.\     FOK    m:ri:iti:.\<'K   TO    COMMISSION!-:!:  No.  '•'•- 

teivd  in  said  court  and  cause  referring  Hit-  same  to 

one  of  the  circuit  court  commissioners  in  and  for  sa^j  couniy. 
directing  him  to  take  the  testimony  of  all  of  the  witnesses  pro 
<luce<l  by  said  jtarlics  or  either  of  them,  as  to  the  extent  ami 
value  of  the  property  of  said  defendant,  and  the  necessities  of 
said  plaintiff,  and  to  report  said  testimony  together  with  his 
opinion  thereon,  to  said  court  with  all  convenient  speed:  and 
that  your  petitioner  may  have  such  other  and  further  relief 
in  the  premises  as  to  this  honorable  court  may  seem  proper, 
and  agreeable  to  equity  and  good  conscience. 


Plaintiff. 

Attorney  for  Plaintiff. 

State  of  Michigan     ] 
County  of f  s 

On  this day  of A.  D.  19 before  me, 

a  Notary  Public  in  and  for  said  county,  personally  came  .... 

the  above  named  petitioner,  who  being  by  me 

duly  sworn  says,  that  she  has  hoard  read  the  foregoing  peti- 
tion by  her  subscribed  and  knows  the  contents  thereof,  and 
that  the  same  is  true  of  her  own  knowledge,  except  as  to  those 
matters  which  are  therein  stated  to  be  on  her  information  and 
belief,  and  as  to  those  matters  she  believes  it  to  be  true. 


Subscribed  and  sworn  to  before  me  this day  of 

A.  D.  10.. 


Notary  Public. 
My  Commission  Expires 

To ,  Attorney  for  Defendant : 

Take  Notice,  that  the  foregoing  is  a  true  copy  of  a  petition 
this  day  tiled  in  the  above  entitled  court  and  cause,  and  that 
the  same  will  be  brought  on  for  hearing  before  said  conn,  at 

the  court  house  in  the  city  of in  said  county,  on  the 

day  of A.  D.  19 at  nine  o'clock 

in  the  forenoon  of  that  day,  or  as  soon  thereafter  as  counsel 

445 


No.  33  FORMS   IN   DIVORCE   PROCEDURE 

can  be  heard,  and  a  motion  thereupon  made  that  the  prayer  of 
said  petitioner  be  granted. 

Dated  . 


Attorney  for  Plaintiff. 

No.  33.     Order  of  Reference  to  Take  Proofs. 
(See  Text,  §432.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for County. — In  Chancery. 


Plaintiff, 
v. 


Defendant. 

At  a  session  of  said  court,  held  at  the  court  house  in  the 

city  of in  said  county,  on  the day  of 

A.  D ,  Present,  Hon 

Circuit  Judge. 

On  reading  and  filing  the  petition  of 

the  above  named  plaintiff,  praying  that  an  ordec  be  entered 
in  said  cause,  referring  the  same  to  a  circuit  court  commis- 
sioner, to  take  proof  of  the  extent  and  value  of  the  property 
of  the  said  defendant,  and  of  the  necessities  of  the  above  named 
plaintiff,  to  aid  the  further  directions  of  the  court  as  to  the 
amount  of  alimony  to  be  allowed  to  the  said  plaintiff; 

On  motion  of ,  Attorney  for  the  plaintiff, 

after  hearing ,  Attorney  for  the  defendant, 

in  opposition  thereto,  it  is  ORDERED  that  the  matter  be  re- 
ferred to ,  one  of  the  circuit  court  commission- 
ers in  and  for  said  county,  and  that  said  commissioner  pro- 
ceed to  take  the  testimony  of  all  of  the  witnesses  produced 
by  said  parties  or  either  of  them,  as  to  the  extent  and  value 
of  the  estate  of  said  defendant  owned  by  him  at  the  time  of 
the  commencement  of  this  suit  and  at  the  present  time,  and 
also  of  the  circumstances  and  necessities  of  the  plaintiff. 

And  it  is  further  ORDERED,  that  said  commissioner  cause 
the  testimony  of  said  witnesses  to  be  reduced  to  writing,  and 
subscribed  and  sworn  to  by  them,  and  that  he  report  the  same 

446 


oiu)i:u  <;KA.\TIN<;  MOTION  TO  DISMISS  BILL  N" 

to  this  court,  together  with  his  opinion  thcn-of,  within 
days  from  the  date  of  this  order. 


Circuit  Judge. 

No.  34.     Notice  of  Taking  Proofs  Before  Commissioner. 
(See  Text,  §433.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  .  .  County. — In  Chain-erv. 


Plaintiff, 
v. 


Defendant. 

To ,  Attorney  for  Defendant : 

TAKE   NOTICE,  that   in  pursuance  of  an   order  of   said 
court,  made  and  entered  in  the  above  entitled  cause  on  the 

day  of   A.  D.  10 of  which  the 

annexed  is  a  true  copy,  the  testimony  of  the  witnesses  for 

said  parties  will  be  taken  before  Esq.,  one 

of  the  circuit  court  commissioners  in  and  for  said  county  on 

the  day  of  A.  D.  19 

at  his  office  in  the  city  of in  said  county,  be- 
ginning at  nine  o'clock  in  the  forenoon  of  said  date  and  con- 
tinued from  time  to  time  to  suit  the  convenience  of  said  com- 
missioner and  said  parties  and  their  witnes- 
Dated  . 


Attorney  for  Plaintiff. 

No.  35.     Order  Granting  Motion  to  Dismiss  Bill. 
(See  Text,  §413.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for County. — In  Chancery. 


Plaintiff, 

V. 


Defendant 

447 


No.  36  FORMS    IN     DIVORCE    PROCEDURE 

At  a  session  of  said  court,  held  at  the  court  house  in  the  city 

of in  said  county,  on  the day  of 

A.  D.  19;...,  Present,  Hon 

Circuit  Judge. 

A  motion  having  been  heretofore  made  and  filed  by  and  on 
behalf  of  the  plaintiff  in  the  above  entitled  cause,  for  an  order 
dismissing  the  bill  of  complaint  therein,  for  reasons  stated 

in  said  motion,  after  hearing  . . .  . ,  Attorney  for' 

said  defendant  in  support  of  said  motion,  and > 

Attorney  for  said  plaintiff  in  opposition  thereto,  and  it  appear- 
ing to  the  court  that  said  bill  of  complaint  is  not  sufficient  in 
law  to  entitle  the  said  plaintiff  to  the  relief  there.in  and  there- 
by prayed; 

On  motion  of  ,  Attorney  for  said  defend- 
ant, it  is  ORDERED,  that  said  bill  of  complaint  be,  and  the 
same  is  hereby  dismissed. 

And  on  like  motion  it  is~  further  ordered  that  the  said  de- 
fendant recover  costs  to  be  taxed,  including  an  at- 
torney fee  of  dollars,  and  that  M .-.  have 

execution  therefor. 


Circuit  Judge. 

No.  36.    Report  of  Circuit  Court  Commissioner  as  to  Alimony. 
(See  Text,  §433.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  .  .  Countv. — In  Chaucerv. 


Plaintiff, 
v. 


Defendant. 

To  the  Circuit  Court  for  the  Comity  of ,  In  Chancery. 

In  pursuance  of  an  order  of  this  court,  made  *in  this  cause 

on  the day  of A.  D.  19 whereby 

it  was  referred  to  me,  the  undersigned,  a  circuit  court  com- 
missioner in  and  for  said  county,  to  take  the  proofs  and  testi- 
mony of  the  witnesses  for  said  parties,  or  either  of  them,  as 
to  the  extent  and  value  of  the  estate  and  property  owned  by 
said  defendant  at  the  time  of  the  commencement  of  this  suit 
and  at  the  present  time,  and  also  as  to  the  circumstances  and 

448 


IM-M'ORT  AS  TO  ALIMONY  No.  .36 

necessities  nf  tlir  plaintiff,  to  :ii«l  tin-  I'urtlicr  directions  of 
s.-iid  court  as  to  the  amount  of  alimony  to  be  awarded  to  the 
plaintiff,  I,  the  saiH  circuit  court  commissioner  do  hereby 
respectfully  report: 

That  having  given  due  notice  to  the  respective  parties  of 
the  time  and  (dace  of  the  hearing  thereof,  and  having  been 
attended  by  the  Attorneys  for  each  of  the  parties,  and  having 
caused  to  come  before  me  all  of  such  witnesses  as  the  respective 

parlies  desired  or  made  known  to  me,  I  did  on  the 

day  of   A.  D.  10.  ...   at  my  oftice  in  the  city  of 

in  said  county,  proceed  to  take  the  proofs 

of  the  respective  parties,  and  the  several  witnesses  attending 
having  been  severally  duly  sworn  and  examined  before  me 
touching  the  matters  aforesaid,  I  caused  their  testimony  to 
be  reduced  to  writ  in-,  and  caused  the  same  to  be  subscribed 
by  each  of  said  witnesses,  and  have  attached  the  same  hereto 
as  and  for  a  part  of  this  my  report. 

I  further  report  that  T  find  from  the  evidence  that  the  de- 
fendant has  and  is  the  owner  of  real  estate  of  the  value  of 

dollars  or  thereabout,  the  yearly  income  from 

which  is   dollars  or  thereabout,   and   that 

the  personal  estate  consists  of    (state  what)    and   the  value 

thereof  is  about dollars,  and  the  yearly  income 

therefrom   is    dollars.     That    

children  of  the  issue  of  the  marriage  between  the  parties, 
namely:  (give  name,  age  and  sex  of  each  child)  live  with  and 
are  entirely  supported  by  the  plaintiff.  That  the  plaintiff  has 
no  means  of  support,  other  than  her  personal  labor:  that  she 
is  in  poor  health  and  unable  to  work  a  considerable  portion 
of  the  time. 

T  further  report  that  the  sum  of dollars  per 

year  paid  quarterly  in  advance  would  be  a  suitable  allowance 
for  support  and  alimony,  of  the  said  plaintiff  with  said  minor 

children,  and  that  it  ought  to  be  payable  from  the 

day  of A.  D.  10 and  that  such  alimony  and 

allowance  be  made  subject  to.be  increased  or  decreased  in  the 
future  as  circumstances  may  be  shown  to  require. 

And  that  my  fees  amount  to dollars,  all  of 

which  is  respectfully  submitted. 

Dated  . 


Circuit  Court  Commissioner. 

449 


No.  37  FORMS    IN    DIVORCE    PROCEDURE 

No.  37.     Order  Confirming  Report  of  Commissioner. 
(See  Text,  §433.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for County. — In  Chancery. 


Plaintiff, 
v. 

(caption) 

Defendant. 

On  reading  the  report  of Esq.,  a  circuit  court 

commissioner  of  said  county  of  wherein  he  re- 
ports that  in  his  opinion  the  sum  of dollars  per 

year,  payable  quarterly  in  advance  would  be  a  suitable  allow- 
ance for  support  and  alimony  of  said  plaintiff  with  her  said 
1  minor  children  and  that  the  same  ought  to  be  made  payable 

from  the day  of A.  D.  19 ,  and 

the  court  having  duly  considered  said  report  and  having  heard 
counsel  for  the  respective  parties  in  relation  thereto,  and  being 
fully  advised  thereon: 

It  is  ORDERED,  ADJUDGED  AND  DECREED,  by  the 
court  now  here  that  said  report  be,  and  the  same  hereby  is,  in 
all  things  approved  and  confirmed. 

And  it  is  further  ORDERED,  ADJUDGED  AND  DE- 
CREED, that  the  said  defendant  do  pay  to  the  said  plaintiff 
the  sum  of dollars  per  year,  payable  quarterly  in  ad- 
vance, beginning  on  the day  of A.  D.  19. .. 

for  her  support  and  for  the  support  of  her  said  

minor  children,  until  the  further  order  of  this  court,  and  that 
said  amount  so  to  be  paid  by  said  defendant  to  said  plaintiff 
be  a  lien  upon  the  real  estate  of  said  defendant  as  to  all 
amounts  from  time  to  time  due  and  unpaid. 

And  it  is  further  ORDERED,  ADJUDGED  AND  DE- 
CREED, that  the  said  plaintiff  do  recover  against  the  said 
defendant  her  costs  to  be  taxed,  including  an  attorney  fee  of 
.  dollars  and  that  she  have  execution  therefor. 


Circuit  Judge. 

450 


PETITION   FOR  TEMPORARY   ALIMONY  No.  38 

No.   38.    Petition  for  Temporary  Alimony  and    Expenses  by 
Plaintiff. 

(See  Text,  §437.) 

STATE  OF  MICHIGA  N 

The  Circuit  Court  for County. — In  Chancery. 


Plaintiff, 
v. 


Defendant. 

To  the  Circuit  Court  for County,  In  Chancery. 

The  petition  of  ,  the  above  named  plaintiff, 

respectfully  shows  unto  this  honorable  court  as  follows; 

I. 

That  she  is  the  wife  of  the  above  named  defendant  and  that 

she  has  recently,  and  on  the day  of 

19 ,  filed  her  bill  of  complaint  in  this  cause  against  the  said 

defendant  to  obtain  a  decree  of  divorce  dissolving  the  mar- 
riage between  herself  and  the  said  defendant,  because  of  (state 
ground  on  which  divorce  is  asked),  as  in  and  by  your  peti- 
tioner's said  bill  now  on  file  in  this  court,  more  particularly 
set  forth,  and  to  which  reference  is  made,  will  more  fully  and 
at  large  appear. 

II. 

That  she  is  wholly  destitute  of  the  means  of  supporting  her- 
self, and young  children,  the  offspring  of  said  mar- 
riage during  the  pendency  of  this  suit,  and  is  destitute  of  the 
means  of  prosecuting  the  same  and  defraying  the  costs  and 
expenses  attending  the  same,  and  that  she  has  no  means  with 
which  to  employ  and  pay  an  attorney  for  his  services  in  con- 
nection with  the  prosecution  thereof. 

III. 

That  the  said  defendant  is  the  owner  of  a  considerable 
amount  of  property  (describe  it),  from  which  he  derives  an  in- 
come of dollars  per  annum,  as  your  petitioner  is  in- 

451 


No.  38  FORMS   IN   DIVORCE   PROCEDURE 

formed  arid  believes  and  therefore  charges  the  fact  to  be  on 
information  and  belief,  that  the  said  defendant  is  abundantly 
able  to  furnish  your  petitioner  with  sufficient  means  for  the 
support  of  herself  and  said  children  during  the  pendency  of 
this  suit,  and  to  enable  her  to  employ  counsel  to  prosecute 
the  same,  and  to  pay  the  necessary  costs  and  expenses  thereof. 
Your  petitioner  therefore  prays  that  the  said  defendant  may 
be  required  by  the  order  of  this  court  to  pay  to  her  a  reason- 
able sum  per  week  for  the  support  of  herself  and  children  dur- 
ing the  pendency  of  this  suit,  and  also  such  reasonable  sum  or 
sums  of  money  as  may  be  necessary  to  enable  her  to  prosecute 
her  suit  in  this  court  and  cause,  and  to  pay  attorney's  fees, 
officers'  fees,  witnesses'  fees  and  other  expenses  thereof,  and 
that  she  may  have  such  further  or  other  relief,  as  to  this 
court  shall  seem  proper,  and  agreeable  to  equity  and  good 
conscience. 


Plaintiff. 

Attorney  for  plaintiff. 
State  of  Michigan 


County  of 

On  this day  of  A.  D.  19 be- 
fore me,  a  Notary  Public,  in  and  for  said  county,  personally 

came ,  the  above  named  petitioner,  who  being 

by  me  duly  sworn  says  that  she  has read  the  fore- 
going petition  by  her  subscribed  and  knows  the  contents 
thereof,  and  that  the  same  is  true  of  her  own  knowledge  ex- 
cept as  to  the  matters  which  are  therein  stated  to  be  upon  her 
information  and  belief  and  as  to  those  matters  she  believes 
it  to  be  true. 


Plaintiff. 

Subscribed  and  sworn  to  before  me  this day  of 

.  A  .D.  19.. 


Notary  Public. 
My  Commission  Expires  

452 


I'KTlTloN     mi:     AI.IM".\V     AND    EXPENSES  No.  39 

To ,  Attorney  for  Defendant : 

TAKE  NOTICE,  that  the  foregoing  is  a  true  copy  of  a  peii 
i  ion  this  day  tiled  in  the  above  entitled  court  and  cause,  and 
that  tin-  same  will  be  brought  on  for  hearing  before  said  court 
on  the day  of A.  D.  19. ...  at  tin- 
court  house  in  the  city  of '. .  in  said  county,  at  nine 

o'clock  in  the  forerioon  of  that  date,  or  as  soon  thereafter  as 
counsel  can  be  heard,  and  a  motion  thereupon  made  that  the 
[•layer  of  said  petition  be  granted. 

Pated  .  .19.. 


Attorney  for  Plaintiff. 

No.  39.    Petition  for  Alimony  and  Expenses,  by  Defendant. 
(See  Text.  §437.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for County.    Tn  Chancery. 


Plaintiff, 
v. 


Defendant. 

• 


The  Circuit  Court  for Counts'. — In  Cham  cry. 

I. 

The  petition  of ,  the  above  named  defendant. 

respectfully  shows  unto  the  court  that  she  is  the  wife  of  the 

above  named  plaintiff, and  that  said  plain 

tiff  has  lately  filed  his  hill  of  complaint  in  this  court  against 
^our  petitioner  to  obtain  a  decree  of  divorce  dissolving  the 
marriage  between  him  and  your  petitioner,  charging  your  peti- 
tioner with  having  been  guilty  of  (state  ground  of  divorce  as 
charged  in  the  bill),  that  your  petitioner  has  filed  her  answer 
to  the  said  bill  of  complaint  denying  such  charges,  as  by 
reference  to  said  bill  and  answer  now  on  file  in  said  cause,  to 
which  reference  is  made  will  more  fully  appear. 

/         453 


No.  39  FORMS     IN     DIVORCE    PROCEDURE 

II. 

Your  petitioner  further  shows  that  she  is  wholly  destitute 
of  the  means  of  supporting  herself  during  the  pendency  of  this 
suit  and  is  destitute  of  the  means  of  maintaining  her  defense 
and  of  defraying  the  cost  of  expenses  attending  the  same. 

III. 

And  that  the  said  plaintiff  is  the  owner  of  a  considerable 
amount  of  property  and  is  the  owner  of  (set  forth  the  property 
so  far  as  known  and  its  value],  and  that  he  is  also  in  receipt 
of  a  considerable  income  and  that  the  annual  (or  monthly) 
income  of  the  said  plaintiff  is  at  least  $ your  peti- 
tioner therefore  prays  that  the  said  plaintiff  may  be  required 
by  an  order  of  this  court  to  pay  to  her  a  reasonable  sum  per 
month  for  her  support  and  maintenance  during  the  pendency 
of  this  suit  and  also  such  sum  and  sums  of  money  as  may  be 
necessary  to  enable  her  to  carry  on  her  defense,  to  pay  attor- 
ney fees,  and  to  defray  the  other  necessary  costs  and  expenses 
thereof,  and  that  she  may  have  such  further  or  other  relief 
as  to  this  court  shall  seem  meet. 


Attorney  for  Petitioner. 
State  of  Michigan 


County  of 

On  this day  of ,  A.  D.  19 ....  be- 
fore me,  the   subscriber,  a  Notary  Public,  in   and  for  said 

county  and  state  personally  came ,  the 

above  named  petitioner,  who  being  by  me  duly  sworn  says  that 
she  has  heard  read  the  foregoing  petition  by  her  subscribed 
and  knows  the  contents  thereof  and  that  the  same  is  true  of 
her  own  knowledge  except  as  to  such  matters  as  are  therein 
stated  to  be  upon  her  information  and  belief  and  as  to  those 
matters  she  believes  it  to  be  true. 


Subscribed  and  sworn  to  before  me  this dav  of 

.  A.  D.  19..... 


Notary  Public. 

My  Commission  expires 

\ 

454 


ORDER  FOR  ALIMONY  AND  EXPENSES  N  ".  41 

No.  40.     Order  Allowing  Temporary  Alimony  and  Expenses    to 
Plaintiff. 

(See  Text,  §438.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for County. — In  Chancery. 


Plaintiff, 
v. 


Defendant. 

At  a  session  of  said  court  held  at  the  court  house  in  the 

city  of in  said  county  on  the day  of 

,  A.  D.  19.... 

Present  Honorable ,  Circuit  Judge. 

In  this  cause  the  petition  of  the  above  named  plaintiff  for 
alimony  during  the  pendency  of  this  cause  and  a  reasonable 
sum  to  enable  her  to  defray  the  expenses  of  prosecuting  her 
said  suit  came  on  to  be  heard,  and  the  court  having  heard 
and  considered  the  said  petition  and  the  testimony  presented 
by  the  parties  respectively  and  the  arguments  of  counsel  for 
each  party:  it  is  ordered  by  the  court  now  here  that  the  de- 
fendant pay  to  the  plaintiff  or  to  her  attorney  the  sum  of 

$ within  days  from  the  date  hereof  and 

that  he  pay  to  the  plaintiff  the  further  silm  of  $ per 

month  on  or  before  the  day  of  each  and  every 

month  commencing  on  the   day  of   , 

A.  D.  19. . . .,  for  her  support  during  the  pendency  of  this  suit. 


Circuit  Judge. 
Clerk.' 


No.  41.    Order  for  Alimony  and  Expenses,  to  Defendant. 
(See  Text,  §438.) 

STATE  OF  MICHIGAN 

The  Circuit  Court  for County. — In  Chancery. 


Plaintiff, 
v. 
(Caption) 

Defendant. 


455 


No.  42  FORMS    IN    DIVORCE    PROCEDURE 

This  cause  came  on  to  be  heard  upon  the  petition  of  the  de- 
fendant for  alimony  during  the  pendency  of  this  suit  and  for 
an  allowance  to  enable  her  to  defend  the  same.  And  the  court 
having  heard  the  petition  of  the  said  defendant  duly  verified 
and  the  affidavits  and  other  testimony  in  support  thereof  and 
the  counter-affidavits  on  the  part  of  the  said  plaintiff,  and  the 
arguments  of  counsel,  and  upon  due  consideration  thereof: 
it  is  ordered  and  adjudged  that  the  said  plaintiff  do  within 

days  from  the  date  of  this  order  pay  to  the  attorney 

for  the  defendant  $ -as  an  attorney's  fee,  and  that 

he  also  pay  to  the  said  defendant  or  her  attorney  tlfe  further 

sum  of  $ per  month  for  each  and  everj-  month  in 

advance  during  the  pendency  of  this  suit  commencing  on  the 

day  of ,  A.  D.  19 and  that  he 

pay  to  the  defendant  or  her  attorney  the  fees  of  the  witnesses 
for  the  said  defendant  and  all  fees  of  officers  and  court  ex- 
penses as  they  accrue  on  demand. 


Circuit  Judge. 
Countersigned 


Clerk. 

No.  42.     Order  Denying  Temporary  Alimony. 
(See  Text,  §438.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for County. — In  Chancery. 

....*.... 

Plaintiff. 
v. 

(Caption) 

Defendant. 

This  cause  came  on  to  be  heard  upon  the  petition  of  the 

for  alimony  during  the  pendency  of  this  suit 

and  for  an  allowance  to  enable  her  to the  same. 

And  the  court  having  heard  the  petition  of  the  said 

duly  verified  and  the  affidavits  and  other  testimony  in  support 
thereof,   and  the  counter-affidavits  on  the  part  of  the  said 

and  the  arguments  of  counsel,  and  upon  due 

consideration*  thereof :   it  is  ordered  and  adjudged  and  the 

456 


AFFIDAVIT   TO   OBTAIN    AX    ATTACHMENT  No.  44 

court  now  here  does  hereby  order  and  adjudge,  that  the  pmycr 
<»f  s;ii«l  petition  !»»•  ;ind  the  same  is  hereby  denied. 


Circuit  Judge. 
Clerk. 

No.  43.     Demand  for  Payment  of  Temporary  Alimony. 
(See  Text,  §443.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  County. — In  Chancery. 


Plaintiff, 
v. 


Defendant. 
To the  above  named  plaintiff  (or  defendmi  1 1 . 

Birr— 

You  will  please  pay  to  me  or  (to  the  bearer  hereof)  forth- 
with the  sum  of  $ the  same  being  the  amount  now  due 

and  unpaid  upon  an  order  for  alimony  and  expenses  made  in 

the  above  entitled  cause  by  the  said  Court  on  the day 

of A.  I).  1!).  .  .  .  (if  soil  by  messenger  insert),  and 

you  are  hereby  notified  that  the  bearer  hereof  has  full  power 
and  authority  from  me  to  demand  and  receive  of  and  from  you 
the  said  sum  of  money,  I  being  attorney  for  the  above  named 
in  the  above  entitled  cause. 

Dated  this  .  .  dav  of  .  ,  A.  1>.  19. . 


Attorney  for. 

No.  44.    Affidavit  to  Obtain  an  Attachment  for  Non-Payment  of 
Temporary  Alimony.      x 

(See  Text,  §443.) 

STATE  OF  MICHIGAN. 

The  Ciivuit  Court  for  County. — In  Chancery. 


Plaintiff, 
v. 


Defendant. 

457 


No.  44  FORMS   IN    DIVORCE   PROCEDURE 

County  of ,  ss. 

,  the  attorney  for  the  plaintiff  in  the 

above  entitled  cause  being  duly  sworn  says  that  heretofore 

and  on  the day  of ,  A.  D.  19 ,  an  or-. 

der  was  made  in  this  cause  requiring  the  above  named  defend- 
ant,   ,  to  pay  to  the  attorney  for  the 

said    plaintiff   the   sum   of   $ ,   as   an  attorney  fee  and 

$ to    defray    officers    fees    and  court  expenses  within 

. . . days  from  the  date  of  this  order,  and  that  he,  the 

said  defendant,  should  also  pay  to  the  said  plaintiff  or  her  at- 
torney the  further  sum  of  $ per  month  for  each  and 

every  month  in  advance  during  the  pendency  of  this  suit,  com- 
mencing on  the day  of . . . ,  A.  D.  19 . . . . , 

and  that  he,  the  said  defendant,  should  also  pay  to  the  plain- 
tiff or  to  her  attorney  the  fees  for  the  witnesses  for  the  said 
plaintiff  and  all  fees  of  officers  and  court  expenses  as  they 
should  accrue  and  on  demand,  as  in  and  by  the  said  order  now 
remaining  of  record  in  this  court,  and  to  which  reference  is 
prayed,  fully  appears. 

And  that  afterwards  and  on  the day  of , 

A.  D.  19. . . .,  a  certified  copy  of  the  said  order  was  personally 

served  upon  the  said  defendant,  ,  as 

fully  appears  by  the  affidavits  of  . . , 

hereto  annexed  and  that  more  than days  have 

elapsed  since  the  date  of  the  said  order  and  since  the  service 
of  the  said  certified  copy  thereof  on  the  said  defendant,  and 
that  the  said  sum  of  $ so  ordered  to  be  paid  as  an  at- 
torney fee  as  well  as  the  sum  of  $ for  officers'  fees  and 

court  expenses  is  now  past  due,  and  that  the  said  sum  of 

ft per  month  so  ordered  to  be  paid  on  the 

day  of  each  month  during  the  pendency  >of  this  suit  is  now  due 

and  payable  for  each  of  the  months  of and 

,  and  that  this  deponent  has  as  attorney  for 

the  plaintiff,  since  said  several  sums  became  due,  on  the 

day  of ,  A.  D.  19 . . . . ,  called  upon 

the  said  defendant  and  demanded  of  him  that  he  should  pay 

the  same,  and  on  the day  of  

A.  I).  19. ...  he  served  (or  caused  to  be  served)  upon  the  said 
defendant  a  demand  in  writing  for  the  same  a  copy  of  which 
demand  in  writing  is  hereto  annexed. 

And  this  deponent  further  says  that  the  said  defendant  has 
not  paid^the  said  several  sums  or  any  part  thereof  and  has 

458 


ORDER  TO  SHOW  CAUSE  N  "    45 

hitherto  refused  and  still  does  refuse  to  pay  the  same  or  any 
part  thereof. 


Subscribed  and  sworn  to  before  me  this day  of 

A.  D.  19.. 


Notary  Public. 
My  Commission  expires  

(Annex  affidavit  of  service  of  certified  copy  of  order,  also 
affidavit  of  service  of  demand  if  written  demand  was  made). 

No.  45.     Order  to  Show  Cause  Why  Attachment  Should  not  Issue. 
(See  Text,  §443.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for County. — In  Chancery. 


Plaintiff, 
v. 


Defendant. 

At  a  session  of  said  court  held  at  the  court  house  in  the  city 

of in  said  county  on  the day  of 

A.   D.  19 

Present   Honorable    ,   Circuit   Judge. 

On  reading  and  filing  due  proof  of  service  of  a  certified 

copy  of  the  order  made  in  this  cause  on  the day  of 

•  A.  D.  19. .  on  the  above  named  defendant, 

personally  ,  and  on  reading  and  filing  due 

proof  of  a  personal  demand  of  payment  of  the  several  sums 
of  money  due  and  unpaid  upon  the  said  order  at  the  time  of 
the  service  thereof  upon  the  said  defendant,  and  that  more 
than  days  have  elapsed  since  such  service  and  de- 
mand and  that  the  said  defendant  has  neglected  to  pay  the 
same  or  cause  the  same,  to  be  paid  or  any  part  thereof :  on  mo- 
tion of ,  attorney  for  the  said  plain- 
tiff it  is  ordered  that  the  said  defendant, 

appear  before  this  court  on  the day  of , 

A.  D.  10 at  the  opening  of  the  court  on  that  day  at  nine 

o'clock  in  the  forenoon  or  as  soon  thereafter  as  the  same  can 
be  heard,  and  show  cause  why  an  attachment  should  not  issue 

459 


No.  46  FORMS   IN   DIVORCE   PROCEDURE 

against  him  and  he  be  punished  and  committed  to  the  common 
jail  of  said  county  of ,  for  his  alleged  con- 
tempt of  this  court  in  his  alleged  neglect  in  not  paying  the 
said  several  sums  of  money  mentioned  in  the  said  order  of  this 

court  made  on  the day  of ,  A.  D. 

19. . . .,  and  his  failure  to  comply  with  the  terms  and  require- 
ments of  said  order.  And  it  is  further  ordered  that  a  certi- 
fied copy  of  this  order  together  with  copies  of  the  affidavits 
on  file  whereon  this  order  is  founded  be  served  upon  the  said 

defendant, ,  on  or  before  the 

day  of  ,  A.  D.  19 


Circuit  Judge. 

Examined,  countersigned  and 
entered  by  me, 


Clerk. 

No.  46.     Order  for  Attachment  and  Commitment. 
(See  Text,  §443.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  .  .  Countv. — In  Chancerv. 


Plaintiff. 
v. 


Defendant. 

At  a  session  of  said  court  held  at  the  courthouse  in  the  city 

'of in  said  county  on  the   day 

of ,  A.  D.  19....' 

Present  Honorable  ,  Circuit  Judge. 

In  this  cause  on  reading  and  filing  due  proof  of  the  personal 

service  upon  the  above  named  defendant,  , 

of  a  certified  copy  of  the  order  of  this  .court  heretofore  and 

on  the day  of ,  A.  D.  19 made 

in  this  cause,  requiring  him,  the  said  defendant, 

,  to  appear  before  this  court  on  the 

day  of  ,  A.  D.  19 . . . . ,  and  show  cause  why 

an  attachment  should  not  .issue  against  him  as  for  a  contempt, 
for  his  neglect  and  refusal  to  comply  with  and  obey  the  order 
of  this  court  theretofore,  and  on  the day  of , 

460 


[  ni;    ATTACHMENT    AM'    COM.MIT.MKXT  No.    !»'. 

A.    l>.   1!» made  iii    this  cause  requiring  him  1o  pay   tin-  ;it 

torne\    for  the  plaintiff   (lie  sum  fit'  * lor  attorney   fees. 

officers  fees  and  court  expenses  \vilhin    days  from 

the  date  of  sai<l  order,  and  also  pay  to  the  plaintiff  or  her 

attorney  the  further  sum  of  $ per  month  in  advance  on 

the day  of  each  month  for  her  support  and  inaintr 

nance  during  the  pendency  of  this  suit,  together  with  the  cop 
ies  of  all  the  affidavits  whereon  the  said  order  was  founded. 
and  on  reading  the  affidavits  on  file  in  support  of  the  said  or 
der  and  the  affidavits  of  and  on  behalf  of  the  said  defendant 
in  reply  thereto,  and  it  appearing  to  the  court  now  here,  that 
there  is  now  due  ami  unpaid  on  the  said  order  made  on  tin- 
said  day  of  A.  I).  I'.l the 

sum  of  | for  attorney  fees,  officers'  fees  and  court  ex- 
penses, and  the  further  sum  of  % for  the  support  and 

maintenance  of  the  said  plaintiff,  and  that  a  certified  cop\  of 
the  said  last  mentioned  order  was  duly  served  upon  the  said 

defendant  and  that  more  than  days  have  elapsed 

wince  the  date  of  said  order  and  since  such  service,  and  that  i 
personal  demand  has  been  made  of  the  said  defendant  that  he 
should  pay  the  sam&  and  that  the  said  defendant  has  not  paid 
the  same  nor  any  part  thereof,  and  that  ijo  sufficient  reason 
or  cause  for  such  non-payment  has  been  shown. 

On  motion  of   ,  attorney  for  the 

plaintiff,  and  after  hearing ,  at- 
torney for  the  defendant,  it  is  orYlered  and  adjudged  that  the 

said   defendant,    ,   is  guilty  of  the 

misconduct  and  contempt  aforesaid,  and  that  a  precept  of  at- 
tachment be  issued  out  of  and  under  the  seal  of  this  court,  di- 
rected to  the  sheriff  of  the  county  of  commit 

ting  him  to  the  common  jail  of  the  said  county  of 

and  detain  him  in  custody  in  the  said  jail  until  he  shall  pay 
the  said  several  sums  so  ordered  to  be  paid,  and  also  the  costs 
of  the  proceedings  to  compel  such  payment,  hereby  taxed  at 

the  sum  of  $ together  with  the  fees  of  the  said  sheriff 

in  the  execution  of  such  precept. 


Circuit  Jud-' 
Countersigned  and  entered 


Clerk. 

461 


No.  47  FORMS   IN   DIVORCE   PROCEDURE 

No.  47.    Injunction  to  Restrain  Sale  or  Encumbrance  of  Property. 
(See  Text,  §441.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  County  of — In  Chancery. 


Plaintiff, 
v. 


Defendant. 

To  and  to  , 

counsellors,  attorneys,  solicitors,  agents  and  each  and  every 
one  of  them. 

GREETING : 

WHEREAS,  it  has  been  represented  to  us  in  the  Circuit 

Court  for  the  County  of ,  In  Chancery,  on  the 

part  of  ,  plaintiff,  that  

has  lately  exhibited 

bill  of  complaint  against  you,  the  said '. , 

as  defendant,  to  be  relieved  touching  the  matters  therein  com- 
plained of ;  in  which  bill  it  is  stated  amongst  other  things  that 
you  are  combining  and  confederating  with  others  to  injure 
the  said  plaintiff  touching  the  matters  set  forth  in  the  said 
bill,  and  that  your  actings  and»  doings  in  the  premises  are  con- 
trary to  equity  and  good  conscience ;  we  therefore,  in  consider- 
ation thereof  and  of  the  particular  matters  in  the  said  bill  set 

forth,  do  strictly  command  you,  the  said  , 

and  the  persons  before  mentioned  and  each  and  every  one  of 
you  under  the  penalty  of  $10,000  to  be  levied  on  your  lands, 
goods  and  chattels  to  our  use  that  you  do  absolutely  desist 
and  refrain  from  selling,  assigning,  encumbering  or  otherwise 
disposing  of  any  of  your  real  or  personal  property  until  the 
further  order  of  this  court. 

Witness  the  Honorable ,  Circuit 

Judge  and  the  seal  of  said  court  at ,  this 

day  of ,  A.  D.  19 


Attorney  for  Plaintiff. 

Clerk'. 


I 

INJUNCTION    TO    RESTRAIN    THREATENED    INJURY         No.    Is 

State  of  Michigan,    \ 
County  of . ...  j  s 

I  hereby  certify  and  return  that  on  the day  of 

,  A.  D.  19 ,  at .    I 

served  the  within  writ  of  injunction  on , 

the  defendant  named  therein,  personally  by  then  and  there 
showing  to  the  said the  said  injunc- 
tion with  the  seal  of  the  court  impressed  thereon  and  deliver- 
ing to a  true  copy,  thereof. 


Sheriff  of  said   County. 

No.  48.     Injunction  to  Restrain  Threatened  Injury. 
(See  Text,  §442.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  County  of — In  Cliaiuvry. 


Plaintiff, 
v. 


Defendant. 

To  and  to   . . . '. , 

counsellors,  attorneys,  solicitors,  agents  and  each  and  every 

one  of  them. 

GREETING: 

WHEREAS,  it  has  been  represented  to  us  in  the  Circuit 
Court  for  the  County  of ,  In  Chancery,  on  tin- 
part  of ,  plaintiff,  that  ' 

has  lately  exhibited  

bill  of  complaint  against  you,  the  said 

as  defendant,  to  be  relieved  touching  the  matters  therein  com- 
plained of:  in  which  bill  it  is  stated  amongst  other  tilings  that 
you  are  combining  and  confederating  with  others  to  injun-  Un- 
said plaintiff  touching  the  matters  set  forth  in  the  said  bill, 
and  that  your  actings  and  doings  in  the  premises  are  contrary 
to  equity  and  good  conscience;  we,  therefore,  in  consideration 
thereof,  and  of  the  particular  matters  in  tin-  said  hill  set 

forth,  do  strictly  command  you,  the  said 

and  the  persons  before  mentioned  and  each  and  every  one  of 
you  under  the  penalty  of  $10,000  to  be  levied  on  your  lands. 

463 


iNo.  49  FORMS    IN    DIVORCE     PROCEDURE 

goods  and  chattels  to  our  use  that  you  do  absolutely  desist  and 

refrain  from  in  any  manner  interfering  with  the  said 

or  injuring  or  otherwise  annoying  her  and 

from  visiting  her  or  attempting  to  converse  with  her  and  from 
in  any  manner  injuring  or  interfering  with  any  of  the  property 
in  her  possession  until  the  further  order  of  this  court. 

Witness  the  Honorable   , . . ,  Circuit 

Judge,  and  the  seal  of  said  court  at ,  this 

.day  of ,  A.  D.  19: ... 


Attorney  for  Plaintiff. 

Clerk. 
State  of  Michigan, 


County  of 

I  hereby  certify  and  return  that  on  the day  of 

,  A.  D.  19 ,  at ,  I 

served  the  within  writ  of  injunction  on    

,  the  defendant  named  therein,  personally 

by  then  and  there  showing  to  the  said 

the  said  injunction  with  the  seal  of  the  court  impressed  there- 
on, and  delivering  to   a  true  copy, 

thereof. 


Sheriff  of  said  county. 

No.  49.    Decree  of  Divorce  Reserving  Question  of  Alimony. 

(See  Text,  §446.) 

STATE.  OF  MICHIGAN. 

The  Circuit  Court  for  the  County  of — In  Chancery. 

Plaintiff, 
v. 

Defendant. 

At  a  Cession  of  said  court  held  at  the  courthouse  in  the  city 
of  . . . ,; ''.. :  .£'/7 in  said  county  on  the day  of 

.... ,,; '.  <..4vi4-»  . .  A.  D^  19 /Y.7.  ft    ,  , 

Present  Honorable   .tinted**  .  M.  .@&4{,  Circuit  Judge. 

This   cause  having  been   brought  on  to  be  heard  upon  the 

pleadings  and  proofs,  the  proofs  having  been  taken  in  open 

464 


i-i;cici:i:  OF  mxouci:  AM>  FOR  ALIMONY  No.  50 

court,  en  reading  the  bill  of  complaint  ;in<l  answer />f  the  de 
feudal  .IIH!  hearing  the  proofs,  taken  as  aforesaid  from  which 
it  v;,i  istactoHly  appears  to  this  court  that  the  material  facts 
charged  in  said  hill  of  complaint  are  true  and  that  the  defend 

ant, ,  has  been  guilty  of  the  several 

acts  of rf^C^TV^x'WWx*  "f therein  charged  : 

On    motion   of    .  3. ')T. . '.*. . . TfT A*T? attorney  for   s;iid 

plaintitl'.    and    after    hearing    attor 

nev  for  said  defendant,  in  opposition  theretojit  is  ordered,  ad- 
judged and  decreed  and  this  court  by  virtue  of  the  authority 
therein  vested  and  in  pursuance  of  the  statute  in  such  case 
made  and  provided  doth  order,  adjudge  and  decree  that  the 
marriage  between  the  said  plaintiff,  «/*.>*•  iv».  .<>»*.*.  r. . . ., 

and  the  said  defendant,   . C*+4 •.••>«•».».  .'/.».».*. *-.".'. .,  be  dis- 

>olved  and  the  same  is  hereby  dissolved  accordingly.  And 
the  said  parties  are,  and  each  of  them,  is  free  from  the  obli- 
gation, thereof. 

And  on  like  motion  it  is  further  ordered  that  the  said  plain- 
tiff have  the  custody,  care  and  control  of  

,  the  minor  children  of  said  marri- 
age, until  they  arrive  at  the  age  of years  respec- 
tively or  until  the  further  order  of  this  court. 

It  is  further  ordered,  adjudged  and  decreed  that  the  ques- 
tion as  to  the  alimony,  and  the  amount  thereof,  to  be  allowed 

to  said   ,  be  and  the  same  is  hereby 

reserved  for  further  directions  after  the  taking  of  testimony/ 
for  the  determination,  thereof. 


Circuit  Judge. 

Examined,  countersigned   and 
entered  by  me, 


Clerk. 

C- 1  •  /*j£-    '<"  *?  /' 
No.  50.     Decree  of  Divorce  and  for  Alimony, 

(See  Text,  §446.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  Conntv  of — In  Chancerv. 


Plain  HIV. 
v. 


Defendant. 

465 


No.  40  FORMS     IN     DIVORCE     PROCEDURE 

At  a  session  of  said  court  held  at  the  courthouse  in  the  city 

of in  said  county  on  the 

day  of .,  A.  D.  19 

Present  Honorable    ,   Circuit  Judge. 

This  cause  came  on  to  be  heard  upqn  the  bill  of  complaint 
therein,  the  answer  of  the  defendant  thereto  and  upon  proofs 
taken  in  open  court  and  said  proofs  having  been  duly  consid- 
ered from  which  it  satisfactorily  appears  to  this  court  that  the 
material  facts  charged  in  the  said  bill  of  complaint  are  true 

and  that  the  defendant,  .  .^  ^.<v./^  rr.^r-rs ,  has  been 

guilty  of  the  several  acts  of   . .  UrH^vrv^rvr } 

therein  charged.         ^     £   ^/ 

On  motion  of  . . .\< .  .*. . .  f?''. . ! ,  counsel  for  said 

plaintiff  it  is  ordered,  adjudged  and  decreed  and  this  court 
by  virtue  of  the  authority  therein  vested,  and  in  pursuance  of 
the  statute  in  such  case  made  and  provided,  doth  order,  ad- 
judge and  decree  that  the  marriage  between  the  said  plaintiff, 

,  and  the  said  defendant,   

,  be  dissolved  and  the  same  is  hereby  dis- 
solved accordingly.  And  the  said  parties  are  and  each  of 
them  is  free  from  the  obligation  thereof.  'v 

It  is  further  ordered,  adjudged  and  decreed  that  the  said  de- 
fendant pay  to  the  said  plaintiff  the  sum  of  $ to  be 

paid  as  follows :    $ upon  the day  of 

,  A.  D.  19 and  the  further  sum  of  -f 

on  the  first  day  of  each  and  every  month  during- the  life  time 
of  the  said  plaintiff  or  until  the  further  order  of  this  court. 

And  it  is  further  ordered,  adjudged  and  decreed  that  this 
decree  be  and  remain  a  lien  on  the  real  estate  of  the  defend- 
ant until  he  shall  have  given  security  for  the  faithful  perform- 
ance thereof  to  the  satisfaction  of  this  court  or  of  the  said 
plaintiff,  and  that  the  defendant  pay  to  the  plaintiff  or  her 
solicitor  the  costs  of  this  suit  to  be  taxed  including  an  attor- 
ney fee  of  | and  that  in  case  of  default  being  made 

in  the  payment  of  said  installments  of  money  as  the  same  shall 
become  due  or  of  the  costs  herein,  that  execution  issue  for  the 
same  and  that  the  plaintiff  have  leave  to  cause  this  decree  or  a 
certified  copy  thereof  to  be  recorded  in  the  office  of  the  Register 
of  Deeds  of  any  county  in  this  state  wherein  the  real  estate 
of  the  defendant  or  any  part  thereof  is  situate  as  a  lien  on 
such  property  as  aforesaid  and  that  either  party  may  be  at 

466 


DECREE   FOR   PERMANENT   ALIMONY  No.  51 

liberty  to  apply  to  this  court  for  further  directions  in  regard 
to  alimony  as  occasion  may  require. 


Circuit  Judge. 

Examined,  countersigned  and 
entered  by  me. 


Clerk. 

No.  51.    Decree  for  Permanent  Alimony  After  Divorce. 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for County. — In  Chancery. 


Plaintiff, 
v. 


Defendant. 

At  a  session  of  said  court  held  at  the  court  house  in  the  city 

of in  said  county  on  the day  of 

,  A.  D.  19.... 

Present  Honorable ,  Circuit  Judge. 

This  cause'came  on  again  to  be  heard  as  to  the  allowance  of 
alimony  to  be  paid  by  defendant  to  the  plaintiff  upon  the 
pleadings  and  proofs  taken  therein  and  the  court  having  here- 
tofore rendered  a  decree  in  this  cause  dissolving  the  marriage 
between  the  plaintiff  and  the  defendant  and  having  reserved 
the  consideration  of  the  question  of  alimony  for  further  direc 
tions  and  counsel  for  the  respective  parties  having  been  heard 
thereon  and  the  court  being  fully  advised  in  the  pn-n, 
Thereupon  in  consideration  thereof  it  is  ordered,  adjudged  and 
decreed  and  the  court  doth  hereby  order,  adjudge  and  decree 

that  the  said  defendant  pay  to  the  plaintiff  the  sum  of  $ 

during  each  and  every  year  commencing  on  the 

•  lays  of   ,  and    ,  and    ,.., 

and  ,  of  each  year  until  the  further  order  of  tliis 

court;  and  that  the  said  defendant  do  pay  the  costs  of  this 

suit  including  an  attorney  fee  of  § to  be  taxed  by 

the  Clerk  of  this  court  to  tin-  plain! iff  or  her  attorney  within 
days  from  the  date  of  this  decree,  and  that  in  de- 
fault of  the  payment  of  any  of  said  suras  or  of  any  part  thereof 

467 


FORMS    IN    DIVORCE    PROCEDURE 

in  the  manner  and  at  the  times  here  provided  tha't  execution 
issue  therefor. 

And  it  is  further  ordered,  adjudged  and  decreed  that  this 
decree  shall  be  and  remain  a  lien  upon  all  the  lands  and  tene- 
ments of  the  said  defendant  until  the  defendant  shall  execute 
a  good  and  sufficient  mortgage  upon  his  real  estate  or  upon 
so  much  thereof  as  shall  be  sufficient  to  secure  the  prompt  pay- 
ment of  the  several  sums  herein  ordered  to  be  paid,  and  such 
mortgage  shall  be  approved  by  or  under  the  direction  of  this  , 
court,  or  such  other  security  as  shall  be  approved  by  this 
court. 

And  it  is  further  ordered,  adjudged  and  decreed  that  the 
said  plaintiff  have  leave  to  cause  this  decree  or  a  certified  copy 
thereof  to  be  recorded  in  the  office  of  the  Register  of  Deeds  of 
any  county  in  this  state  wherein  the  real  estate  of  the  said 
defendant  or  any  part  thereof  is  situate  as  a  lien  on  such  prop- 
ertv  as  aforesaid  and  that  either  party  may  be  at  liberty  to 
apply  to  this  court  for  further  directions,  as  occasion  may  re- 
quire. 


Circuit  Judge. 

I^xamined,  countersigned  and 
entered  by  me, 


Clerk. . 

No.  52.    Decree  of  Divorce  from  Bed  and  Board  and  for  Alimony. 
(See  Text,  §446.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  County  of — In  Chancery. 



Plaintiff, 
v. 

Defendant. 

At  a  session  of  said  court  held  at  the  courthouse  in  the  city 

of   ,  in  said  county  on  the   

day  of  ,  A.  D.  19. .'. . 

Present  Honorable  ,  Circuit  Judge. 

This  cause  having  come  on  to  be  heard  upon  the  pleadings. of 
the  respective  parties  on  file,  and  the  proofs  taken  therein  in 
open  court,  and  having  been  argued  by  the  counsel  for  the 

468 


PI:*  i;i,i:  n;o.\i  1:1:1.  AM-  I:U.M:I>  ANK  FOU  ALIMONY       JS'o.  52 

parties  respectively.  ;in<l  the  court  being  fully  advised  in  the 
premises,  and  it  appearing  to  tin-  roiirt  that  the  material  alle 
Cations  in  the  bill  of  complaint  contained  arc  true  ami  that 
ihe  said  defendant  is  guilty  of  the  several  acts  of  extreme 

cruelty  ami   misconduct   therein  charged,  and   that   ll piities 

of  the  case  are  with  the  plaintiff. 

Therefore,  iipou  due  consideration  thereof,  it  is  ordered,  ad- 
judged and  decreed  by  the  court  now  here  that  the  said  pan  ie>. 
plaintiff  and  defendant,  he  and  they  hereby  are  divorced  from 
bed  and  board  forever  (or  for  a  limited  tinn  ),  but  not  other- 
wise from  Ihe  bonds  of  matrimony  and  that  the  marriage  be- 
tween the  said  parties  be  and  remain  otherwise,  in  full  force. 
and  that  the  said  plaintiff  is  entitled  to  a  separate  mainte- 
nance from  the  said  defendant  and  that  she  be  allowed,  and 
that  the  said  defendant  do  pay  to  her,  the  said  plaintiff,  the 
sum  of  $.  . .  .  per  year,  commencing  from  the  time  of  the  filing 
of  the  said  plaintiff's  bill  of  complaint  in  this  cause,  that  is  to 

say.  from  the day  of  . .' ,  A.  D. 

19....,  and  that  the  same  be  paid  in  monthly  installments  of 

•S each,  payable,  in  advance  on  the  day  of 

each  and  every  month  thereafter  until  the  further  order  of 
tli  is  court. 

And   it    is  further  ordered,  adjudged  and  decreed   that    this 
decree  lie  and  remain  a  lien  on  the  real  estate  of  the  defend 
ant  until  he  shall  have  given  security  for  the  faithful  perform 
ance  thereof,  to  the  satisfaction  of  this  court,  or  of  the  said 
plaintiff,  and  that    the  defendant    pay  to  the  plaintiff  or  her 
attorney   the  costs  of  tjiis  suit  to  be  taxed,  including  an  at- 
torney Jee  of  $ and   that  in  case  of  default  being  made 

in  the  payment  of  the  said  installments  of  money  as  the  same 
shall  become  due,  or  of  the  costs  herein,  that  execution  issue 
for  the  same:  and  that  the  plaintiff  have  leave  to  cause  this 
decree  or  a  certified  copy  thereof  to  be  recorded  in  the  otlice 
of  the  Register  of  Deeds  of  any  county  in  this  state  wherein 
the  real  estate  of  the  defendant  is  situate,  as  a  lien  on  such 
property  as  aforesaid,  and  that  either  party  may  be  at  liberty 
to  apply  to  this  court  for  further  directions  in  relation  there- 
to, as  occasion  may  require. 


Circuit  Judge. 

Kxamined.  countersigned  and 
entered  by  me. 

Clerk. 

469 


No.  53  FORMS   IN   DIVORCE  PROCEDURE 

No.  53.    Decree  Annulling  Marriage. 

(See  Text,  §446.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  County  of — In  Chancery. 


Plaintiff, 


Defendant. 

At  a  session  of  said  court  held  at  the  courthouse  in  the  city 

of ,  in  said  county  on  the day 

of ,  A.  D.  19 

Present  Honorable ,  Circuit  Judge. 

This  cause  having  come  on  to  be  heard  upon  the  pleadings 
and  proofs  taken  therein  in  open  court,  and  having  been  ar- 
gued by  counsel  for  the  parties  respectively,  and  the  court  be- 
ing fully  advised  in  the  premises,  and  it  appearing  to  the  court 
that  the  material  allegations  in  the  bill  of  complaint  contained 
are  true,  and  that  the  marriage  mentioned  in  said  bill  was 
procured  by  the  defendant  by  force,  fraud  and  misrepresenta- 
tion on  the  part  of  said  defendant,  and  that  the  equities  of  the 
case  are  with  the  plaintiff: 

On  motion  of ,  attorney  for  said 

plaintiff,  it  is  ordered,  adjudged  and  decreed  by  the  court  now 
here  that  the  said  marriage  between  the  plaintiff  and  the  de- 
fendant be  declared  and  the  same  is  hereby  declared  to  be 
absolutely  void  and  said  marriage  is  hereby  annulled.  " 

And  it  is  further  ordered,  adjudged  and  decreed  that  the 
said  defendant  pay  to  the  said  plaintiff  the  costs  of  this  suit 
to  be  taxed  and  that  execution  issue  therefor. 


Circuit  Judge. 

Examined,  countersigned  and 
entered  by  me, 


Clerk. 

No.  54.    Decree  Affirming  Marriage. 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  County  of — In  Chancery. 

470 


PETITION    FOR    RE-HEAK1M.  No.  55 


Plaintiff, 
v. 


Defendant. 

At  a  session  of  said  court  held  at  the  courthouse  in  the  city 

of in  said  county  on  the day 

of ,  A.  D.  19 

Present  Honorable  ,  Circuit  Judge. 

This  cause  having  come  on  to  be  heard  upon  the  pleadings 
of  the  respective  parties  on  file,  and  the  proofs  taken  therein 
in  open  court,  and  having  been  argued  by  counsel  for  the  par- 
ties respectively,  and  the  court  being  fully  advised  in  the  prem- 
ises, and  it  appearing  to  the  court  that  the  material  allega- 
tions in  the  bill  of  complaint  contained  are  true  and  that  the 
s;ii«l  marriage  between  the  plaintiff  and  the  defendant  was  and 
is  in  all  respects  lawful  and  in  accordance  with  the  laws  of 
this  state,  and  that  the  equities  of  the  case  as  set  forth  in  said 
bill  are  with  the  plaintiff: 

Therefore,  upon  due  consideration  thereof  it  is  ordered,  ad- 
judged and  decreed  by  the  court  now  here  that  the  said  mar- 
riage between  the  plaintiff  and  the  defendant  in  this  cause, 
be  and  the  same  is  hereby  in  all  things  affirmed. 

It  is  further  ordered,  adjudged  and  decreed  that  the  said  de- 
fendant pay  to  the  said  plaintiff  the  costs  of  this  suit  to  be 

taxed,  including  an  attorney  fee  of  $ ,  and  that  in  case 

of  non-payment,  execution  may  issue  therefor. 


Circuit  Judge. 

Kxamincd,  countersigned  and 
entered  by  me. 


Clerk. 

No.  55.     Petition  for  Re-Hearing. 

(See  Text,  §467.) 
STATE  OF  MICHIGAN. 
The  Circuit  Court  tor  tlit>  County  of — In  Chancery. 


Plaintiff, 
v. 


Defendant. 

471 


No.  56  FORMS   IN   DIVORCE   PROCEDURE 

To  the  Circuit  Court  for  the  County  of — In  Chancery. 

The  petition  of   - . . ,  the  above  named 

defendant  respectfully  shows: 

I. 

That  on  the day  of ,  A.  D.  19 , 

a  decree  was  made  in  the  above  entitled  cause  by  this  court, 
wherein  and  whereby  it  was,  among  other  things,  ordered,  ad; 
judged  and  decreed  (state  part  of  decree  complained  of). 

II. 

That  so  much  of  the  said  decree  above  recited  is  erroneous 
because  (state  reasons  in  full)' 

III. 

That  said  decree  has  been  settled,  signed  and  entered,  but 
not  yet  enrolled. 

Wherefore,  your  petitioner  prays  that  the  court  will  grant 
a  re-hearing  of  the  said  cause,  he  the  said  petitioner,  submit- 
ting to  pay  such  costs  as  the  court  shall  award  in- case  this 
complaint  shall  be  found  to  be  groundless.1 


Attorney  for  Petitioner. 


,     (Usual  Verification). 

We  certify  that  we  have  examined-  the  case  referred  to  in 
the  foregoing  petition  and  are  of  opinion  that  the  decree  there- 
in mentioned  is  erroneous  in  the  particulars  mentioned  in  said 
petition. 


Attorney  for  . . 
Of  Counsel  for. 


No.  56.     Order  for  Re-Hearing. 

(See  Text,  §467.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  County  of — In  Chancery. 

472 


ORDER  DENYING   RE-HEARING  No.  57 

Plaintiff, 


V. 


Defendant 

At  a  session  of  said  court  held  at  the  courthouse  in  the  city 

of ,  in  said  county  on  the 

day  of ,  A.  D.  19 

Present  Honorable  ,  Circuit  Judge. 

In  this  cause  on  reading  and  filing  the  petition  duly  verified 

of  the  above  named  defendant,  with  a 

certificate  of and  

counsel  of  this  court  thereto  attached : 

On  motion  of ,  attorney,  and  of 

counsel  for  the  said  defendant  and  counsel  for  the  plaintiff 
having  been  heard  in  opposition  thereto,  it  is  ordered  that  a 
re-hearing  be  had  in  said  cause  as  to  the  matters  complained 

of  in  the  said  petition  in  this  court  on  the day  of 

A.  D.  19. ...  (or  at  the  next  term  of  this  court) , 

and  that  in  the  meantime  all  proceedings  in  said  cause  against 

said  petitioners  • ,  on  said  decree  be 

staved. 


Circuit  Judge. 
Aa mined,  countersigned  and 
entered  bv  me. 


Clerk. 

No.  57.     Order  Denying  Re-Hearing. 

(See  Text,  §467.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  Countv  of  .  .  — In  Chancer\. 


Plaintiff, 
v. 


Defendant. 

At  a  session  of  said  court  held  at  the  conn  house  in  the  city 

473 


No.  58  FORMS   IN   DIVORCE   PROCEDURE 

/ 

of in  said  county  on  the  day 

of   ,  A.  D.  19 

Present  Honorable  ,  Circuit  Judge. 

This  cause  canie  on  to  be  heard  upon  the  petition  of  the  de- 
fendant therein  duly  verified  and  was  argued  by  counsel  for 
the  parties  respectively,  and  it  appearing  to  the  court  that 

there  is  no  error  in  the  decree  heretofore  and  on  the 

day  of ,  A.  D.  19. . . . ,  entered  in  said  cause 

therefor. 

On  motion  of ,  attorney,  and  of 

counsel  for  defendant,  counsel  for  the  plaintiff,  having  been 
heard  in  opposition  thereto  it  is  ordered  that  a  re-hearing  of 
said  cause  be  and  the  same  is  hereby  denied.  • 


«  Circuit  Judge. 

Examined,  countersigned  and 
entered  by  me, 


Clerk. 

No.  58.    Certificate  of  Enrollment. 

(See  Text,  §468.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  County  of — In  Chancery. 

"i3iaintiff,'' 
v. 

Defendant. 

I,  the  undersigned,  Clerk  of  said  court,  do  hereby  Certify 
that  thirty  days  have  elapsed  since  the  entry  of  the  decree  in 
the  above  entitled  cause  and  that  on  this  date  I  have  attached 
together  for  the  purpose  of  enrollment  the  bill  of  complaint, 
subpoena,  pleadings,  proofs,  taxed  bill  of  costs,  a  fair  copy  of 

final  decree  signed  by  the  Honorable T 

Circuit  Judge,  and  countersigned  by  the  Clerk  of  this  court, 
together  with  all  of  the 'other  papers  filed  in  this  cause  and 
annexed  thereto  this  certificate  according  to  the  statute  in  such 
case  made  and  provided. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  af- 

474 


PETITION  FOR  DISCHARGE  OP  DECREE  No.  60 


fixed  the  seal  of  said  court  this day  of 

A.  D.  19.. 


Clerk. 
L.  S.      • 

No.  59.     Discharge  and  Satisfaction  of  Decree. 
[See  Text,  §469.) 

STATE  OP  MICHIGAN. 

The  Circuit  Court  for  the  County  of — In  Chancery. 


Plaintiff, 
v. 


Defendant. 

(Caption). 

In  the  above  entitled  cause  on  reading  and  filing  the  stipu- 
lation of  the  parties  thereto,  signed  and  approved  by  their 
attorneys  respectively,  it  is  ordered  that  the  decree  heretofore 

and  on  the day  of ,  A.  D.  19 

entered  in  said  cause  be  and  the  same  is  hereby  fully  satisfied 
and  discharged. 


Circuit  Judge. 

Examined,  countersigned  and 
entered  by  me. 


Clerk. 

No.  60.     Petition  for  Discharge  of  Decree. 

(See  Text 


STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  Countv  of  .  .  —  In  Chancerv. 


Plaintiff, 
v. 


Defendant. 

476 


No.  GO  FORMS   IN   DIVORCE   PROCEDURE 

To  the  Court : 

Your  petitioner    ,  represents  unto 

this  honorable  court  as  follows : 

I. 

That  heretofore  and  on  to- wit :  the day  of 

A.  D.  19. . . .,  the  final  decree  was  entered  in  this  cause  requir- 
ing your  petitioner  to  pay  to  the  plaintiff  the  sum  of  f , 

and  the  costs  of  said  suit  to  be  taxed. 

II. 

Your  petitioner  further  shows  that  he  has  complied  with 
said  decree  in  all  respects  and  has  paid  to  the  attorney  for 
said  plaintiff,  the  said  sum  of  money  required  by  said  decree  to 
be  paid  and  that  said  plaintiff  has  refused  and  still  does  re- 
fuse to  satisfy  and  discharge  said  decree. 

Your  petitioner  therefore  prays  that  an  order  may  be  made 
by  this  court  discharging  and  satisfying  said  decree  and  re- 
leasing your  petitioner  from  any  obligation  thereon  and  that 
your  petitioner  may  have  such  other  or  further  relief  as  to  the 
court  may  seem  proper  and  as  shall  be  agreeable  to  equity  and 
good  conscience. 


Petitioner. 
State  of  Michigan, 


County  of 

On  this   day  of ,  A.  D.  19 be- 
fore me,  the  undersigned,  a  Notary  Public,  in  and  for  said 

county,  personally  came  to  mer 

known  to  be  the  same  person  who  signed  the  foregoing  peti- 
tion and  who  being  by  me  duly  sworn  deposes  and  says  that 
he  has  heard  read  the  foregoing  petition  by  him  subscribed, 
and  knows  the  contents  thereof,  and  that  the  same  is  true  of 
his  own  knowledge  except  as  to  such  matters  as  are  therein 
stated  to  be  on  his  information  and  belief  and  as  to  those 
matters  he  believes  it  to  be  true. 


Subscribed  and  sworn  to  before  me  this   day  of 

,  A.  D.  19 


Notary  Public. 
My  Commission  expires 


476 


ORDER  DENYING  DISCHARGE  OF  DECREE  No.  62 

No.  61.     Order  Discharging  Decree. 

Text.  §460.) 


STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  County  of  ........  —  In  Chancery. 


Plaintiff, 
v. 


Defendant. 

At  a  session  of  said  court  held  at  the  courthouse  in  Hie  city 

of   in  said  county  on  the  day  of 

,  A.  D.  19....  r 

Present  Honorable   (Mrcuit  .hidge. 

This  cause  came  on  to  be  heard  upon  the  petition  of  the  de- 
fendant therein  .for  a  discharge  of  the  decree  heretofore  en- 
tered in  said  cause  and  after  hearing  counsel  for  the  parties 
respectively  and  upon  reading  said  petition  and  the  affidavits 
agd  other  proofs  in  support  thereof  and  the  affidavits  ami 
testimony  in  opposition  thereto,  it  appearing  to  the  court  that 
the  said  defendant  has  in  all  respects  complied  with  the  said 
decree,  it  is  ordered  that  said  decree  be  and  the  same  is  hereby 
declared  to  be  fully  paid,  satisfied  and  discharged. 

It  is  further  ordered  that  the  said  plaintiff  pay  to  1lie  said 

defendant  an  attorney  fee  of  f and  the  costs  of  hearing 

of  said  petition  to  be  taxed. 


Circuit 

Examined,  countersigned  and 
entered  by  me. 


Clerk. 

No.  62.     Order  Denying  Discharge  of  Decree. 
(See  Text,  §469.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  County  of  .  .  — In  Chancery. 


Plaintiff, 
v. 


Defendant. 

477 


No.  63  FORMS    IX    DIVORCE    PROCEDURE 

At  a  session  of  said  court  held  at  the  courthouse  in  the  city 

of in  said  county  on  the day  of 

,  A.  D.  19.... 

Present  Honorable  ,  Circuit  Judge. 

This  cause  came  on  to  be  heard  upon  the  petition  of  the 
defendant  therein  praying  for  an  order  discharging  and  satis- 
fying the  decree  heretofore  entered  in  said  cause.  On  reading 
said  petition  and  the  affidavits  and  other  proofs  in  support 
thereof  and  the  affidavits  and  testimony  in  opposition  thereto 
and  after  hearing  counsel  for  the  parties  respectively,  and  it 
appearing  to  the  court  that  said  decree  has  not  been  complied 
with  in  all  respects  it  is  ordered,  adjudged  and  decreed  that 
the  prayer  of  said  petition  be  and  the  same  is  hereby  denied. 

It  is  further  ordered  that  the  plaintiff  pay  to  the  defendant 
the  costs  of  the  hearing  on  said  petition  to  be  taxed  including 
an  attorney  fee  of  $ 


Circuit  Judge. 

Examined,  countersigned  and 
entered  by  me, 


Clerk. 

No.  63.     Order  Directing  Prosecuting  Attorney  to  Appear  and 
Defend. 

(See  Text,  §474.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  County  of — In  Chancery. 


Plaintiff, 
v. 


Defendant. 

At  a  session  of  said  court  held  at  the  courthouse  in  the  city 

of in  said  county  on  the day  of 

A.  D.  19 

Present  Honorable  ,  Circuit  Judge. 

In  the  above  entitled  cause  it  having  been  made  to  appear  to 
this  court  that  the  public  good  requires  that  a  defense  be  made 
in  said  cause  by  the  Prosecuting  Attorney  of  said  county, 

478 


OF   PROSECUTING  ATTORNEY  No.  64 

it  is  order* M I  that  said  1'rosecutiiiu  Attorney  cause  his  appear- 
ance to  be  entered  in  said  cause  within  days  from 

this  date  and  procure  a  copy  of  the  bill  of  complaint  therein 
and  make  due  and  proper  investigation  as  to  the  facts  and 
circumstances  of  said  cause  and  to  appear  on  the  hearing 
thereof  and  defend  unless  by  the  further  order  of  this  court 
and  upon  the  report  of  said  Prosecuting  Attorney  it  shall  ap- 
pear to  the  court  that  such  defense  is  not  necessary. 

It  is  further  ordered  that  the  said  Prosecuting  Attorney 
make  a  report  to  this  court  of  his  investigation  therein  and 
await  the  further  direction  of  the  court. 


Circuit  Judge. 

Examined,  countersigned  ami 
entered  by  me. 


Clerk. 

No.  64.    Report  of  Prosecuting  Attorney. 
(See  Text,  §474.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  County  of ., — In  Chancery. 


Plaintiff, 

v. 


Defendant. 

To  the  Circuit  Court  for County. 

I, ,  the  Prosecuting  Attorney  of  said  county. 

do  hereby  respectfully  report  to  the  court  that  I  have  pro- 
cured a  copy  of  the  bill  of  complaint  in  the  above  entitled 
cause,  caused  my  appearance  to  be  entered  in  said  cause  and 
have  investigated  the  matters  set  forth  in  said  bill  of  com- 
plaint and  after  a  full  and  careful  investigation  of  said  cause 
I  believe  that  there  ia  collusion  between  the  parties  thereto 
and  that  the  interests  of  the  public  require  that  a  defense  be 
made  by  the  Prosecuting  Attorney  of  said  county  all  of  which 
is  respectfully  submitted. 

Dated  this  .  .   dav  of  .  ,  A.  D.  10. . 


Prosecuting  Attorney. 

479 


No.  65  FORMS   IN   DIVORCE    PROCEDURE 

No.  65.     Order  Appointing  an  Attorney  to  Defend. 
(See  Text,  §476.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  County  .of ,  In  Chancery. 


Plaintiff, 


Defendant. 

At  a  session  of  said  court  held  at  the  court  house  in  the 
city  of  .'  ...........  in  said  county  on  the  ............  day 

of  ............  ,  A.  D.  19  ____ 

Present  Honorable  ...............  ,  Circuit  Judge. 

In  the  above  entitled  cause  it  appearing  from  the  bill  of 
complaint  on  file  in  this  court  that  there  are  minor  children 
of  said  marriage  under  the  age  of   .....  .....   years  and  it 

further  appearing  that  the  Prosecuting  Attorney  of  said 
county  is  disqualified  by  reason  of  his  being  engaged  as  coun- 
sel for  one  of  the  parties  to  said  cause: 

It  is  therefore  ordered  that  ..............   of  the  city  of 

............  in  said  county,  an  attorney  of  this  court  be  and 

he  is  hereby  appointed  and  directed  to  appear  in  said  cause 
on  behalf  of  said  minor  children  and  the  interests  of  the 
public  and  defend  the  same. 


Circuit  Judge. 

Examined,  countersigned  and 
entered  by  me, 


Clerk. 

s- 

No.  66.    Claim  of  Appeal. 

(See  Text,  §479.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  County  of ,  In  Chancery. 


Plaintiff, 
v. 


Defendant. 
480 


NOTICE    OF   APPEAL  No.  67 

To  the  Clerk  of  said  Court: 

Now  comes  the  above  named  defendant  (or 

plaintiff)  and  hereby  claims  the  benefit  of  an  appeal  to  the 
Supreme  Court  of  this  st;ite  from  the  final  decree  o'f  said 
court  made  and  rondnvd  in  this  cause  by  the  above  named 
court  on  the day  of ,  A.  D.  19 

The  sum  of  f 5.00  for  the  Clerk's  fee  for  making  return  to 
said  appeal  is  herewith  paid. 

Dated  this  _.  day  of ,  A.  D.  10 


Attorney  for 

No.  67.    Notice  of  Appeal  and  of  Application  for  Approval  of  Bond. 
(See  Text,  §479.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  County  of ,  In  Cham -IM-V. 

Plaintiff, 


Defendant. 
To ,  Attorney  for 

Sir: 

Please  take  notice  that  ,  the  defendant  in  the 

above  entitled  cause,  has  appealed  to  the  Supreme  Court  of 

this  state  from  the  final  decree  made  therein  on  the 

day  of ,  A.  D.  19 by  the  Circuit  Court  for  the 

county  of  ,  In  Chancery,  and  that  a  bond  for 

costs  and  damages  and  to  stay  proceedings  in  said  cause  pend- 
ing such  appeal,  in  the  penal  sum  of  $ with 

and ,  both  of  the 

of  in  said  bounty  of as  sure- 

tics.  a  copy  whereof  is  hereto  annexed,  has  been  duly  executed 

and  an  application  will  be  made  to  the  Honorable , 

Circuit  Judge,  at  his  Chambers  in  the  city  of in 

said  county  on  the day  of  . .  A ,  A.  D. 

19. ...  at o'clock  in  the noon  for  the  approval 

of  said  bond  and  the  penalty  thereof  and  the  sureties  thereto. 

Dated  this day  of ,  A.  D.  19 


Attorney  for  

481 


No.  .68  FORMS    IN    DIVORCE    PROCEDURE 

No.  68.    Bond  on  Appeal. 

(See  Text,  §479.) 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  that  we, 

,  of  the  city  of  . . . . in  the 

county  of and  state  of ,  as  princi- 
pal, and  and of  the 

of  ,  county  of and  state  of 

Michigan  as  sureties,  are  held  and  firmly  bound  unto 

of in  the  sum  of  $ ,  lawful 

money  of  the  United  States ;  to  be  paid  to  the  said 

or  to  his  certain  attorneys,  executors,  administrators  or  as- 
signs, to  which  payment  well  and  truly  to  be  made,  we  bind 
ourselves  and  our  heirs,  executors,  administrators  and  each 
and  every  of  them  jointly  and  severally  firmly  by  these 
presents. 

Sealed  with  our  seals  and  dated  this  day  of 

A.  D,  19 

WHEREAS  the  above  bounden has 

appealed  to  the  Supreme  Court  of  the  state  of  Michigan  from 
a  decree  made  by  the  Circuit  Court  for  the  county  of  ....... 

In  Chancery,  in  a  cause  in  said  court  wherein  the  said 

is  plaintiff  and  the  above  bounden 

defendant. 

NOW  THEREFORE,  the  condition  of  this  obligation  is 

such  that  if  the  above  bounden shall 

diligently  prosecute  his  said  appeal  to  effect  and  shall  per- 
form and  satisfy  such  decree  or  order  as  the  said  Supreme 
Court  shall  make  in  said  cause,  and  shall  pay  all  costs  of  the 

said  therein  that  said  Supreme  Court  shall 

award  to  be  paid  by  him,  the  said  ,  then  this 

obligation  to  be  void,  otherwise  to  remain  in  full  force. 

(L.  S.) 

(L.  S.) 

c .(L.  S.) 

Due  proof  of  service  of  notice  of  application  for  the  ap- 
proval of  the  within  bond  having  been  filed :  the  within  bond 
and  the  penalty  thereof  and  the  sureties  thereto  are  hereby  ap- 
proved. 

Dated  this day  of  ,  A.  D.  19 


Circuit  Judge. 

482 


CASE   ON    APPEAL  N  « >.  69 

No.  69.     Case  on  Appeal. 

(See  Text,  §482.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  County  of In  Chancery. 


Plaintiff, 

v. 


Defendant. 

At  a  session  of  the  said  court  held  at  the  court   house  in 
the  city  of  ..............  in  said  county  on  the  ............ 

day  of   ..............  ,  A.  D.  19  ____  ,  before  the  Honorable 

..............  ,  Judge  of  the  ^said  court,  this  cause  rame  on 

for  hearing  on  examination  of  witnesses  in  open  court  as  in 
a  suit  at  law,  and  thereupon  the  said  plaintiff  appeared  by 
......  ........  ,  his  counsel,  and  the  defendant  also  appeared 

by  ............  \  .,  his  counsel  :  and  thereupon  the  counsel  for 

the  plaintiff  called  as  a  witness  .....  .................  who, 

haying  been  duly  sworn  testified  in  substance  as  follows  : 

I  reside  at  .....  .......  and  am  ............  years  of  age 

(state  substance  of  testimony  in  narrative  form  except  in  such 
particular  instances  where  a  statement  by  question  and  answer 
is  necessary  to  a  full  uuderxtnndinij  of  the  meaning  of  the 
ir  if  nesses.  Where  a  question  is  asked  which  was  objected  to 
at  the  time  and  it  is  desired  to  preserve  the  benefit  of  the  ob- 
jection state  as  folloirx)  :  and  thereupon  the  counsel  for  the 
plaintiff  asked  the  said  witness  the  following  question  : 
Q.  (state  question  verbatim). 

to  which  counsel  for  the  defendant  objected  because  (state 
reason*  for  objection  as  given  at  the  time)  and  the  witness 
answered  (state  answer,  etc.,  as  to  all  evidence  objected  to). 
(After  the  direct  examination  say)  :  on  cross  examination  the 
said  witness  testified  in  substance  (state  the  testimony  as  in 
the  direct). 

On  re-direct  examination  the  said  witness  testified  in  sub- 
siance  (state  testimony,  etc.,  with  each  witness  for  plaintiff, 
then  say)  ;  the  plaintiff  thereupon  rested  and  counsel  for  the 
defendant  called  as  a  witness  one  .............  .  who  having 

been  duly  sworn  testified  in  substance  as  follows:  (if  <ini/ 
exhibits  such  as  letters  or  other  documents  are  intrndm-rd  in 
evidence  they  should  In-  recited  in  tin  r,/v,  ,/t  tin 


483 


NO.  70  FORMS   IN   DIVORCE    PROCEDURE 

places  respectively  as  follows)  :  whereupon  the  counsel  for  the 
plaintiff  offered  and  read  in  evidence  plaintiff's  Exhibit  A 
which  reads  as  follows:  (insert  copy  of  exhibit)  (state  as  fol- 
lows) :  thereupon  upon  the day  of the 

testimony  and  proofs  in  this  case  were  closed  and  afterwards 

and  on  the  day  of   A.  D.  19 .... 

this  cause  having  been  in  the  meantime  argued  by  counsel 
and  the  court  having  taken  the  same  into  consideration  the 
said  Circuit  Court  made  its  decree  therein  in  favor  of  the  said 

and  against  the  said (the  substance 

of,  the  decree  may  be  briefly  stated)  which  said  decree  was 

made  on  the day  of , , 

entered  in  this  cause.  Thereupon  I,  the  undersigned,  the 
Circuit  Judge  before  whom  the  said  evidence  was  taken  and 
this  cause  was  tried,  do  hereby  certify  that  the  foregoing  case 
and  transcript  contains  the  substance  of  all  of  the  evidence 
given  in  the  said  cause,  and  that  in  that  part  thereof  wherein 
the  testimony  of  witnesses  is  set  forth  (question  and  answer,, 
the  setting  forth  of  such  questions  and  answers  as  is  neces- 
sary to  a  full  understanding  of  the  evidence  and  the  questions 
involved). 

Wherefore  I  have  duly  settled  and  signed  this  transcript 
containing  the  substance  of  all  the  evidence  in  this  cause  this 
day  of ,  A.  D.  19 


Circuit  Judge. 

No.  70.    Notice  of  Settling  Case  on  Appeal. 
(See  Text,  §482.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  County  of ,  In  Chancery. 

Plaintiff, 
vs. 


pefendant. 

To  '.........,  attorney  for  plaintiff  (or  defendant  as 

the  case  may -be). 

Sir:— 

Take  notice  that  the  annexed  is  a  copy  of  a  transcript  of 
the  substance  of  the  evidence  taken  in  this  cause  and  that 

484 


NOTICE    OF   AMENDMENTS   TO    CASE    ON    APPEAL         No.  71 

;ipplir;ition  will  be  made  to  the  Honorable , 

•  hnljje  of  the  said  court,  before  whom  this  cause  was  tried,  at 

his  Chambers  in  the  city  of ,  county  of 

;in<l  stjitc  of  Michigan  on  the day  of , 

A.  1  >.  10. ...  at o'clock  in  the  . . . noon  to  settle 

and  sijrn  the  same. 

Dated  this day  of ,  A.  D.  19 


Attorney  for 

No.  71.    Notice  of  Amendments  to  Case  on  Appeal. 
(See  Text,  §483.) 

STATE  OF  MICHIGAN. 

The  Circuit  Court  for  the  County  of ,  In  Chancery. 


Plaintiff, 
v. 


Defendant. 

To  ,  attorney  for  

Sir:— 

Please  to  take  notice  that  I  shall  propose  the  following 
amendments  to  the  proposed  case  on  appeal  of  the  substance 
of  the  evidence  in  this  cause,  viz: 

First  amendment,  on  line  . . . .,  page  ....  of  the  said  pro- 
posed case  strike  out  the  words  and  insert  the 

words  

Second  amendment,  on  line   of  page   after  the 

words  insert  the  words 

Third  amendment,  on  line  ....  of  page strike  out  the 

words    and  all  thereafter  to   and  including  the 

word on  line  . . . . ,  page  .... 

(And  so  on  designating  all  changes  desired.) 

Dated  this day  of ,  A.  D.  19 


Attorney  for 


486 


AIM'KMHX 


A  NOTE  ON  THE  FULL  FAITH  AND  CREDIT  CLAUSE 

• 

BY  FRANKLIN  A.  BEECHER 

And  the  Leading  Cases  of 

ATHERTON  V.  ATHERTON  AND  HADDOCK  V. 
HADDOCK. 


HISTORY 

Atherton  v.  Atkerton,  82  Hun  179,  31  N.  Y.  S.  977,  64  N. 
Y.  St.  Rep.  798,  155  N.  Y.  129,  49  N.  E.  933,  40  L.  R.  A.  291, 
63  Am.  St.  Rep.  650,  181  U\  S.  155,  21  S.  Ct.  544,  45  L.  Ed. 
794. 

Haddock  v.  Haddock,  75  App.  Div.  565,  78  N.  Y.  S.  304,  12 
N.  Y,  Ann.  Cas.  14,  76  App.  Div.  620,  79  N.  Y.  S.  1133,  178  N. 
Y.  557,  70  N.  E.  1099,  109  App.  Div.  502,  96  N.  Y.  S.  522,  201 
U.  S.  562,  26  S.  Ct.  525,  50  L.  Ed.  867. 


APPENDIX 
A    M»Ti:  ox  THE  FULL  FAITH  AND  CREDIT  CLAUSE. 

Article  IV,  Section  ],.  of  the  Constitution  of  the  United 
States  reads  as  follows:  ''Full  faith  and  credit  shall  be 
given  in  each  State  to  the  public  acts,  records,  and  judicial 
proceedings  of  every  other  state.  And  the  Congress  may,  by 
general  laws,  prescribe  the  manner  in  which  such  acts,  records 
and  proceeding  shall  be  proved  and  the  effect  thereof." 

The  object  and  purpose  of  this  provision  is  to  give  to  the 
public  acts,  records  and  proceedings  of  a  state  the  same  full 
faith  and  credit  in  other  states  that  they  have  in  their  own 
state.1  Thus  the  effect  is  to  secure  to  a  judgment  rendered 
in  <»nr  stale  the  same  full  faith  and  credit  in  the  other  states 
that  it  had  in  the  state  where  rendered.  In  a  case,2  Mr.  Jus- 
tice Marshall  said:  "The 'doctrine  *  *  *  was,  that  the 
judgment  of  a  State  court  should  have  the  same  credit,  valid- 
ity and  effect  in  every  other  court  in  the  United  States,  which 
it  had  in  the  State  where  it  was  pronounced,  and  that  what- 
ever pleas  would  be  good  to  a  suit  therein  in  such  State,  and 
none  others,  could  be  pleaded  in  any  other  court  in  the 
United  States."  It  was  not  intended  by  this  provision  to 
confer  a  new  jurisdiction,  but  to  regulate  the  effect  of  the 
acknowledged  jurisdiction  over  persons  and  things  within 
the  state. 

Pursuant  to  the  power  vested  in  Congress  by  this  provision 
that  body  passed  an  act8  which  provided  that,  "The  acts  of 
the  legislature  of  any  State  or  Territory,  -  r  of  any  country 
subject  to  the  jurisdiction  of  the  United  States,  shall  be  au- 
.thenticated  by  having  the  seal  of  such  Territory  or  State,  or 
country  affixed  thereto.  The  records  and  judicial  proceedings 
of  the  courts  of  any  State  or  Territory,  or  of  any  such 
country,  shall  be  proved  or  admitted  in  any  other  court 
within  the  United  States,  by  the  attestation  of  the  clerk 
and  the  seal  of  the  court  annexed,  if  there  be  a  seal,  together 

1.  Hampton  v.  McConnell,  3  2.  Hampton  v.  McConnell,  3 
Wheaton  234.  Wheaton  234. 

3.  Rev.  Stat.  V.   S.  5905. 

489 


APPENDIX 

with  the  certificate  of  the  judge,  chief  justice,  or  presiding 
magistrate,  that  the  said  attestation  is  in  due  form.     And 
the  said  records  and  judicial  proceedings,  so  authenticated, 
shall  have  such  faith   and,  credit  given  to    them    in    every 
court  within   the  United   States   as   they  have    by    law    or 
usage  in  the  courts  of  the  State  from  which  they  are  taken.'' 
This  statute  does  not  preclude  a  state  from  passing  laws 
by  which  such  further  rules  are  made,  concerning    the    au- 
thentication of  foreign  judgments,  as  may  be  deemed  neces- 
sary, but  they  must  not  be  inconsistent  with    the    act    of 
congress.     Furthermore   the   statute   does    not    render     evi- 
dence inadmissible  to  prove  such  a  judgment  in  a  manner 
-which  could  be  sufficient  at  common  law.4     However,  it  Ls 
the  settled  construction  of  this  constitutional  provision  and 
the  statute  passed  by  congress  in  support  of  it,  that  a  judg- 
ment of  a  state  court,   in   a   cause  within  its  jurisdiction, 
and  against  a  defendant  lawfully  summoned,  or  against  law- 
fully attached  property  of  an  absent  defendant,  is  conclusive 
upon  its  merits  in  the  courts  of  every  other  state,    and    is 
given  the  rights  to  as  much  force  and    effect    against    the 
person  summoned  or  the  property  attached  as  it  has  in  the 
state   in   which    the  judgment   was   rendered,    whenever  the 
question  is   raised  fpr  decision  in   another  state.5     Thus  it 
is  essential  that  the  court  has  jurisdiction  of  the  parties  and 
the   subject-matter.     In   a  case8   the  court   said:     "Without 
that  provision   of   the  Constitution    of    the    United    States 
which  declares  that  'full  faith  and  credit  shall  be  given  in 
each  state  to  the  public  acts,  records,  and  judicial  proceed- 
ings of  every  other  state,'  and  the  Act  of  Congress  passed  to 
carry  it  into  effect,  it  is  clear  that  the  record  in  question 
would  not  be  conclusive  as  to  the  facts  necessary  to  give 
the   justices   of   Monmouth    County    jurisdiction,    whatever 
might  be  its  effect  in  New  Jersey.     In  any  other  state  it 
would   be  regarded    like  any   foreign   judgment;   and   as   to 
a  foreign  judgment  it  is  perfectly  well  settled  that  the  in- 
quiry is  always  open,  whether  the  court  by  which   it  was 

4.  Gaines  v.  Relf,  12  How.  472;  Russell,    5    Wall,    290;    Green    v. 
White  v.  Bamley,  20  How.  235.  VanBuskirk,  7  Wall,  139;   Cooper 

5.  Maxwell  v.  Stewart,  22  Wall.  v.  Reynolds,  10  Wall,  308;   Insur- 
77;    Mills    v.    Duryea,    7    Cranch,  ance  Co.  v.  Harris,  97  U.  S.  331. 
481;     Hampton    v.    McConnell,    3          6.  Thompson     v.     Whitman,    18 
Wheaton      234;       McBlmoyle      v.  Wall,  457. 

Cohen,  13  Pet.  312;    Christmas  v. 

490 


II   I.I.    FAITH     AM>    ritEIHT    CLAUSE 

rendered  had  jurisdiction  of  the  person  or  the  thing.  'Upon 
principle,'  says  Chief  Justice  Marshall,  'it  would  seem  that 
the  operation  of  every  judgment  must  depend  on  the  power 
of  the  court  to  render  that  judgment;  or,  in  other  words, 
on  its  jurisdiction  over  the  subject-matter  which  it  has  de- 
termined. In  some  cases  that  jurisdiction  unquestionably 
depends  ;is  well  on  the  state  of  the  thing  as  on  the  constitu- 
tion of  the  court.  If  by  any  means  whatever  a  prize  court 
should  be  induced  to  condemn,  as  prize  of  war,  a  vessel 
which  was  never  captured,  it  could  not  be  contended  that 
this  condemnation  operated  a  change  of  property,  upon 
principle,  then,  it  would  seem  that,  to  a  certain  extent,  the 
capacity  of  the  court  to  act  upon  the  thing  condemned,  aris- 
ing from  its  being  within,  or  without,  their  jurisdiction,  as 
well  as  the  constitution  of  the  court,  may  be  considered  by 
that  tribunal  which  is  to  decide  on  the  effect  of  the  sen- 
tence,' Rose  v.  Himely,  4  Cranch,  269.  To  .the  same  effect 
see  Story  on  the  Constitution,  chap.  XXIX;  1  Greenleaf  on 
Evidence.  §  540. 

'The  Act  of  Congress  above  referred  to,  which  was  passed 
26th  of  May,  1790,  after  providing  for  the  mode  of  authenti- 
cating the  acts,  records  and  judicial  proceedings  of  the 
States,  declares,  'and  the  said  records  and  judicial  proceed- 
ings, authenticated  as  aforesaid,  shall  have  such  faith  and 
credit  given  to  them  in  every  court  within  the  United  States, 
as  they  have  by  law  or  usage  in  the  courts  of  the  State  from 
whence  the  said  records  are  or  shall  be  taken.'  It  has  been 
supposed  that  this  act,  in  connection  with  the  constitutional 
provision  which  it  was  intended  to  carry  out,  had  the  effect 
of  rendering  the  judgments  of  each  state  equivalent  to 
domestic  judgments  in  every  other  state,  or  at  least  of 
giving  to  them  in  every  other  state  the  same  effect,  in  all 
respects  which  they  have  in  the  state  where  they  are  ren- 
dered. And  the  language  of  this  court  in  Mills  v.  Duryea, 
7  Cranch,  484,  seemed  to  give  countenance  to  this  idea.  The 
court  in  that  case  held  that  the  act  gave  to  the  judgments 
to  each  state  the  same  conclusive  effect,  as  records,  in  all 
the  states,  as  they  had  at  home;  and  that  nil  debet  could 
not  be  pleaded  to  any  action  brought  thereon  in  another 
state.  This  decision  has  never  been  departed  from  in  rela- 
tion to  the  general  effect  of  such  judgments  where  the  ques- 
tions raised  were  not  questions  of  jurisdiction.  But  where 

491 


APPENDIX 

the  jurisdiction  of  the  court  which  rendered  the  judgment 
has  been  assailed,  quite  a  different  view  has  prevailed."  In 
conclusion  the  court  said :  "On  the  whole,  we  think  it  clear 
that  the  jurisdiction  of  the  court  by  which  a  judgment  is 
rendered  in  any  state  may  be  questioned  in  a  collateral  pro- 
ceedings in  another  state,  notwithstanding  the  provision  of 
the  fourth  article  of  the  Constitution  -and  the  law  of  1790, 
and  notwithstanding  the  averments  contained  in  the  record 
of  the  judgment  itself." 

Jurisdictional  questions  concerning  the  validity  and  effect 
of  judgments  rendered  in  another  state  most  frequently 
have  their  source  in  cases  where  judgments  were  rendered 
against  non-residents.  The  doctrine  is  well  settled  that 
judicial  process  of  a  state  has  no  force  or  efficacy  beyond 
the  territorial  limits  in  which  it  was  issued.  Process  issued 
in  one  state  and  served  in  another  cannot  effect  an  appear- 
ance, for  in  such  cases,  the  service  is  purely  constructive  in 
nature,  and  this  statement  is  equally  true  of  service  by 
publication  or  advertisement;  and,  furthermore,  it  is  by 
none  of  these  modes  of  service  that  courts  of  the  state  can  ac- 
quire jurisdiction  for  the  purppse  of  rendering  a  personal 
judgment  against  a  defendant  valid  in  other  states,  for 
where  the  only  service  of  process  on  the  defendant  was  con- 
structive, a  .judgment  rendered  in  all  action  brought  against 
him  in  a  state  is  not  valid  or  binding  in  the  courts  of  any 
other  state. 

In  divorce  proceedings  the  general  rule  may  be  laid  down 
that  where  a  decree  of  divorce  was  rendered  against  a  de- 
fendant who  was  either  personally  served  or  entered  *his  ap- 
pearance, such  judgment  is  sufficiently  efficacious  to  entitle 
it  to  the  protection  of  the  full  faith  and  credit  provision 
of  the  Constitution,7  for  when  a  suit  for  divorce  is  instituted 
in  a  state  court  of  competent  jurisdiction  and  the  defendant 
is  personally  served,  or  he  enters  his  appearance,  jurisdic- 
tion is  given  to  the  court  to  render  a  judgment  not  only 
valid  in  the  state  where  the  suit  was  brought  but  valid  in 
every  other  state.  But  a  divorce  granted  against  a  non-resi- 
dent upon  constructive  service  of  process  is  only  valid  in 
the  state  in  whiph  it  was  granted,  and  has  no  extra-territorial 
effect  as  to  property  rights,  alimony  and  custody  of  minor 

7.  Cheever    v.    Wilson,   9    Wall.      108,  19  L.  Ed.  804. 
492 


II   I.I.    I  Aim    AND    CREDIT    CLAUSE 

children.*  In  a  case,8  the  court  speaking  of  foreign  divorces 
in  which  judgments  were  rendered  on  constructive  service, 
said:  "Under  the  laws  of  the  state  we  permit  a  husband  or 
wife,  as'the  case  may  lie,  to  obtain  a  valid  divorce  by  service 
of  i he  .summons  by  publication  upon  the  defendant  residing 
in  another  jurisdiction,  yet  we  do  not  recognize  as  valid  a 
judgment  of  divorce  obtained  by  a  husband  or  wife  in  a  sister 
state,  unless  the  defendant  has  been  personally  served  with 
process  in  that  jurisdiction,  or  has  appeared  and  submitted 
himself  to  the  jurisdiction  of  that  court.  The  Constitution 
of  the  United  States  requires  that  'full  faith  and  credit  shall 
be  given  in  each  state  to  the  public  acts,  records  and  judicial 
proceedings  of  every  other  state,'  and  it  is  said  that  the 
comity  of  states  and  of  nations,  as  well  as  public  policy,  re- 
quire one  jurisdiction  to  observe  as  valid  a  marriage  legally 
contracted  in  another  jurisdiction.  Seemingly  we  do  neither/' 
The  full  faith  and  credit  provision  was  not  infringed 
where  the  Massachusetts  courts  under  Massachusetts  Pub- 
lic Statutes,  chap.  1  and  G,  §  17,  refused  to  give  effect  to  a 
decree  of  divorce  by  a  court  of  another  state  to  a  citizen  of 
the  State  of  Massachusetts,  where  he  was  domiciled,  but  who 
had  temporarily  resided  in  another  state  for  the  purpose  of 
obtaining  a  divorce  on  grounds  which  happened  while  the 
parties  resided  there,  but  these  grounds  did  not  constitute  a 
sufficient  cause  in  Massachusetts.10.  In  a  case11  which  had 
its  origin  in  Kentucky  by' the  hushand  and  later  proceedings 
were  instituted  in  New  York  by  the  wife,  the  court  refused 
to  give  recognition  to  the  validity  of  the  decree  granted  in 
Kentucky  to  the  husband  where  the  wife  had  abandoned  him 
and  resided  in  New  York,  for  the  reason  that  the  wife  had 
been  only  constructively  served.  This  case  was  reversed,  up- 
on appeal  to  the  United  States  Supreme  Court.  It  was  de- 
cided there12  that  the  decree  was  a  judgment  entitled  to  full 
faith  and  credit  in  every  other  state  in  the  Union  in  accord- 
ance with  the  purport  of  the  constitutional  provision.  In 
this  case  the  court  said:  "This  case  does  not  involve  the 
validity  of  a  divorce  granted,  on  constructive  service,  by  the 

8.  Hekking    v.    Pfaff,    82    Fed.  S.  14,  47  L.  Ed.  366,  23  Sup.  Ct. 
Rep.  403.  Rep.   237. 

9.  Hamilton  v.  Hamilton,  56  N.          11.  Atherton    v.    Atherton,    155 
T.  Supp.  122.  N.  Y.  129,  49  N.  E.  933. 

10.  Andrews  v.  Andrews,  186  U.          12.  Atherton  v.  Atherton,  181  U. 

S.   155,   21   Sup.   Ct.   Rep.   544. 

493- 


APPENDIX 

court  of  a  state  in  which  only  one  of  the  parties  ever  had  a 
domicile;  nor  the  question  to  what  extent  the  good  faith  of 
the  domicile  may  be  afterwards  inquired  into.  In  this  case, 
the  divorce  in  Kentucky  was  by  the  court  of  the  state  which 
had  always  been  the  undoubted  domicile  of  the  husband,  and 
which  was  the  only  matrimonial  domicile  of  the  husband  and 
,  wife.  The  single  question  to  be  decided  is  the  validity  of 
that  divorce,  granted  after  such  notice  had  been  given  as 
was  required  by  the  statutes  of  Kentucky."  Again,  in  a 
case,13  it  was  decided  that  where  a  husband  abandoned  his 
wife  without  justifiable  cause  and  goes  to  another  state 
where  he  becomes  domiciled;  while  the  wife  remains  in  the 
'matrimonial  domicile,  her  domicile  cannot  become  construc- 
tively that  of  the  husband,  and  the  mere  fact  that  the  domicile 
within  the  state  of  one  party  to  the  marriage  contract  does 
not  give  that  state  jurisdiction,  where  the  husband  was  only 
constructively  served  and  did  not  appear,  to  render  a  decree 
of  divorce,  i.  e.,  a  judgment  enforceable  in  all  other  states  of 
the  United  States  by  virtue  of  the  full  faith  and  credit  pro- 
vision of  the  constitution. 

The  cases  of  Atherton  v.  Atherton  and  Haddock  v.  Had- 
dock present  the  question  as  to  whether  the  pro  vision 'of  the 
Federal  Constitution  requiring  full  faith  and  credit  to  be 
given  in  each  state  to  the  judicial  proceedings  of  every  other 
state  applies  to  divorce  proceedings,  where  the  plaintiff  only 
is  domiciled  within  the  territorial  jurisdiction  of  the  court 
granting  the  decree  and  service  on  the  defendant  residing  in 
another  state  is  by  publication  only. 

The  statement  of  facts  and  the  opinions  in  those  two  cases 
are  published  in  full  in  this  appendix,  as  affording  a  ready 
and  convenient  reference  to  the  subject  of  the  conflict  of  di- 
vorce laws  in  this  country,  as  well  as  the  construction  put 
upon  the  full  faith  and  credit  clause  of  the  constitution  by 
the  Supreme  Court  of  the  United  States. 

It  has  sometimes  been  said  that  the  case  of  Haddock  v. 
Haddock  overrules,  in  effect,  former  decisions  of  the  same 
court,  and  especially  the  decision  in  Atherton  v.  Atherton, 
and  a  superficial  reading  of  the  statements  of  facts  and  the 
prevailing  opinions  in  these  two  cases  is  liable  to  lead  one 
to  such  conclusion.  But  a  careful  reading  of  the  statement 
of  facts  prepared  by  Mr.  Justice  Gray  in  the  case  of  Ather- 

13.  Haddock  v.  Haddock,  201  U.      S.  562. 
494 


ATIII:I;TM\   v.  ATIIKI:  i<>\ 

ton  v.  Alherton,  .-iiid  comparison  with  tin-  facts  and  prevail- 
ing opinion  in  Haddock  v.  Haddock,  will  show  that  the  de- 
cisions in  the  two  cases  an*  not  materially  conflicting. 

The  distinguishing  1'eainres  of  the  tacts  upon  which  these 
t\vo  cases  were  decided  are  pointed  out  in  another  part  of 
this  work,  i  See.  39,  page  40.) 


ATHERTON  v.  ATHERTOX. 

For  the  official  reference,  see  the  second  page  of  this  Appendix. 

ERROR  TO  THE   SUPREME  COURT  OF  THE  STATE  OF  NEW   YORK. 
No.  17.     Argued  December   15,  1899.— Decided  April   15,    1901. 

A  husband  and  wife  had  their  matrimonial  domicil  in  Kentucky,  which 
was  the  domicil  of  the  husband.  She  left  him  there,  and  returned 
to  her  mother's  at  Clinton  'in  the  State  of  New  York.  He  filed  a  peti- 
tion against  her  in  a  court  of  Kentucky  for  a  divorce  from  the  bond 
of  matrimony  for  her  abandonment,  which  was  a  cause  of  divorce 
by  the  laws  of  Kentucky;  and  alleged  on  oath,  as  required  by  the 
statutes  of  Kentucky,  that  she  might  be  found  at  Clinton,  and  that 
Clinton  was  the  post-office  nearest  the  place  where  she  might  be 
found.  The  clerk,  as  required  by  those  statutes,  entered  a  warning 
order  to  the  wife  to  appear  in  sixty  days,  and  appointed  an  attorney 
at  law  for  her.  The  attorney  wrote  to  her  at  Clinton,  advising  her 
of  the  object  of  the  petition,  and  enclosing  a  copy  thereof,  in  a  let- 
ter addressed  to  her  by  mail  at  that  place,  and  having  on  'the  en- 
velope a  direction  to  return  it  to  him,  if  not  delivered  in  ten  days. 
A  month  later,  the  attorney,  having  received  no  answer,  made  his 
report  to  the  court.  Five  weeks  afterwards,  the  court,  after  taking 
evidence,  granted  the  husband  an  absolute  decree  of  divorce  for  the 
wife's  abandonment  of  him.  Held,  that  this  decree  was  a  bar  to  the 
wife's  petition  for  a  divorce  in  New  York. 

Statement  of  the  Case. 

THIS  was  a  suit  brought  January  11,  18JKJ,  in  the  Supreme 
Court  of  the  State  of  New  York,  by  Mary  G.  Atherton  against 
Peter  Lee  Atherton,  for  a  divorce  from  bed  and  board,  for  the 
custody  of  the  child  of  the  parties,  and  for  the  support  of  the 
plaintiff  and  the  child,  on  the  ground  of  cruel  and  abusive 
treatment  of  the  plaintiff  by  the  defendant.  The  defendant  ap- 
peared in  the  case;  and  at  a  trial  by  the  court  without  a  jury 
at  June  term,  1893,  the  court  found  the  following  facts: 

On  October  17,  1888,  the  parties  were  married  at  Clinton, 

495 


APPENDIX 

Oneida  County,  New  York,  the  plaintiff  being  a  resident  of 
that  place,  and  the  defendant  a  resident  of  Louisville,  Ken- 
tucky. Immediately  after  the  marriage,  the  parties  went  to 
and  resided  at  Louisville,  in  the  house  with  the  defendant's 
parents,  had  a  child  born  to  them  on  Jan.  8,  1890,  and  there 
continued  to  reside  as  husband  and  wife  until  October  3,  1891. 
Then,  owing  to  his  cruel  and  abusive  treatment,  without  fault 
on  her  part,  she. left  him,  taking  the  child  with  her,  and  in  a 
few  days  thereafter,  returned  to  her  mother  at  Clinton,  and 
has  ever  since  resided  there  with  her  mother,  and  is  a  resi- 
dent and  domiciled  in  the  State  of  New  York,  and  has  not 
lived  or  cohabited  with  the  defendant.  When  she  so  left 
him  and  went  to  Clinton,  she  did  so  with  the  purpose  and 
intention  of  not  returning  to  the  State  of  Kentucky,  but  of 
permanently  residing  in  the  State  of  New  York;  and  this 
purpose  and  intention  were  understood  by  the  defendant  at 
the  time,  and  were  contemplated  and  evidenced  by  an  agree- 
ment entered  into,  at  Louisville,  October  10,  1891,  by  the 
parties  and  one  Henry  P.  Goodenow,  under  advice  of  counsel,, 
which  is  copied  in 'the  margin.1  The  defendant  continued  to 

'The  undersigned,  Peter  Lee  Atherton,  and  his  wife,  Mary  G.  Ather- 
ton,  having  ceased  to  live  together  as  man  and  wife,  without  in  any 
way  acknowledging  upon  whom  is  the  fault,  or  condoning  the  conduct 
of  the  one  or  the  other  which  has  led  to  the  existing  state  of  affairs, 
or  preventing  any  consequence  which  may  follow,  or  right  which  may 
arise  to  .either  party  if  such  status  shall  continue,  desire  to  provide  for 
the  best  interest  of  their  child,  Mary  Valeria  Atherton.  With  this  view 
they  have  entered  into  the  following  agreement: 

Peter  Lee  Atherton  contracting  with  Henry  P.  Goodenow  as  trustee  for 
Mary  G.  Atherton,  and  said  trustee  contracting  with  Peter  Lee  Ather- 
ton on  behalf  and  jointly  with  Mary  G.  Atherton. 

1.  The  child  is  hereby  committed  for  its  nurture,  education  and  con- 
trol to  the  joint  custody  and  guardianship  of  her  mother,  Mary  G. 
Atherton,  and  her  paternal  grandmother,  Maria  B.  Atherton,  on  the 
following  basis: 

The  domicil  of  the  child  is  to  be  the  State  .of  Kentucky.  The  mother 
is  to  have  the  child  until  January  1,  1892.  During  the  years  1892,  1893 
and  1894  the  grandmother  is  to  have  the  child  and  control  its  abode, 
travel  and  custody  from  January  1st  to  the  first  week  in  May;  and  the 
mother  from  the  first  week  in  May  to  December  31st.  After  that  period, 
during  the  existence  of  this  arrangement,  the  grandmother's  custody, 
control,  etc.,  is  to  exist  during  the  first  four  and  last  two  months  of 
the  year;  that  of  the  mother  during  the  other  months  of  the  year. 

2.  During  that  part  of  each  year  in  which  the  child  is  under  the  con- 
trol of  the  mother,  Peter  Lee  Atherton  is  to  pay  into  the  hands  of  Mary 
G.  Atherton  $500  in  installments  of  equal  amounts  at  the  beginning  of 
each  of  the  months  of  said  control,  for  the  comfortable  maintenance  of 

496 


ATMKK'PON    V.    ATMi:i{TOX 

reside  in  Louisville,  and  is  a  resident  of  the  Ktate  of  Kentucky. 
Tin-  defendant,  in  his  answer,  besides  denying  the  cruelly 
charged,  sot  up  a  dmve  of  divorce  from  the  bond  of  matri- 
mony, obtained  by  him  against  his  wife  March  14,  1893,  in  a 
court  of  Jefferson  County  in  the  State  of  Kentucky,  empower- 
ed to  jjrant  divorces.  I'.v  which  "This  action  having  come  on 
to  be  heard  upon  the  pleading!*  report  of  attorney  for  the  ab- 
-eut  defendant,  and  the  evidence  and  the  court  being  advised, 
it  is  considered  by  the  court  that  the  plain  till.  Peter  Lee 
Atherton,  lias  resided  in  .leM'erson  County.  Kentucky,  con- 
tinuously lor  ten  years  last  past;  and  that  he  and  the  defend- 

the  child.  During  the  rest  of  each  year,  he  is  to  himself  at  his  sole 
'expense  provide  for  the  support  of  the  child.  The  expense  of  conveying 
the  child,  with  a  proper  attendant  in  the  Journey,  to  the  mother,  Mary 
G.  Atherton,  is  to  be  borne  by  the  father,  Peter  Lee  Atherton,  and  the 
like  expense,  on  the  journey  back  to  the  grandmother,  is  to  come  out 
of  the  sum  provided  for  the  child's  support. 

3.  Peter  Lee  Atherton  is  to  pay  into  the  hands  of  Mary  G.  Atherton 
for  her  support  $125  at  the  beginning  of  each  month,  until  this  agree- 
ment does  by  its  own  terms  end.    This  is  to  be  taken  in  lieu  of  alimony 
and  dowable  and  distributable  share  in  his  estate. 

4.  The  following  provisions  are  made  for  the  termination  of  this 
agreement,  and  for  the  contingency  of  various  events  that  may  hap- 
pen in  the  future;  among  others,  divorce  and  second  marriage  of  Peter 
Lee  Atherton  or  Mary  G.  Atherton. 

^  a.  This  agreement  as  to  the  child  is  to  terminate  on  her  arrival  at 
fourteen  years  of  age,  it  being  recognized  that  she  will  then  be  old 
enough  to  choose  for  herself.  It  shall,  of  course,  in  like  manner  termi- 
nate at  her  death. 

\  6.  This  agreement  -as  to  the  support  of  Mary  G.  Atherton  is  to  end 
at  her  death,  or  upon  her  again  marrying,  and  in  any  event  on  the 
8th  day  of  January,  1904. 

c.  If  Mary  G.  Atherton  shall  marry  again  or  die,  the  person  then 
being  joint  guardian  with  her  of  the  child  shall  become  its  sole  guar- 
dian.   If  Maria  B.  Atherton  shall  die  while  she  is  joint  guardian,  Peter 
Lee  Atherton,  if  alive,  or  if  he  be  dead,  his  father,  John  M.  Atherton. 
shall  choose  a  successor  in  the  joint  guardianship;   and  if  Mary  G. 
Atherton  objects  to  the  person  so  nominated,  the  senior   (in  years) 
judge  of  the  Jefferson  circuit  court  shall  decide  the  question  of  fitness, 
and  confirm  or  reject  such  nomination. 

d.  A  successor  to  said  successor  may  under  similar  circumstances 
be  in  like  manner  chosen. 

e.  If,  during  the  existence  of  this  agreement,  Mary  G.  Atherton  be- 
ing then  joint  guardian,  John  M.  Atherton  and  Maria  B.  Atherton  shall 
die,  and  Peter  Lee  Atherton  die  or  be  or  become  married,  the  sole 
guardianship  shall  rest  in  said  Mary  G.  Atherton. 

/.  If,  during  the  lives  of  Peter  Lee  Atherton  and  Mary  G.  Atherton, 
a  sole  guardianship  shall  have  resulted  under  the  terms  of  this  agree- 
ment, each  parent  shall  have  reasonable  access  to  and  right  of  visita- 

497 


APPENDIX 

ant,  Mary  G.  Atherton,  were  married  on  the  17th  day  of  Octo- 
ber, 1888 ;  that  from  the  date  of  said  marriage  the  said  plain- 
tiff and  defendant  resided  in  Jefferson  'County,  Kentucky; 
that  while  the  plaintiff  and  defendant  were  thus  residing  in 
Jefferson  County,  Kentucky,  to  wit,  in  the  month  of  October, 
1891,  the  defendant,  Mary  G.  Atherton,  without  fault  upon  the 
part  of  the  plaintiff,  abandoned  him,  and  that  said  abandon- 
ment has  continued  without  interruption  from  that  time  to 
this,  and  at  the  filing  of  the  petition  herein  had  existed  for 
more  than  one  year;  that  the  defendant,  Mary  G.  Atherton, 
had,  at  the  filing  of  the  petition  herein,  been  absent  from  this 
State  for  more  than  four  months;  that  therefore  it  is  further 
considered  and  adjudged  by  the  court  that  the  plaintiff,  Peter 
Lee  Atherton,  is  entitled  to  the  decree  of  divorce  prayed  for 
in  this  petition,  and  that  the  bonds  of  matrimony  between  the 
said  plaintiff,  Peter  Lee  Atherton,  and  the  said  defendant, 
Mary  G.  Atherton,  be  and  they  are  Hereby  dissolved." 

By  the  record  of  that  decree,  duly  verified,  the  following 
appeared :  On  December  28,  1892,  the  plaintiff  filed  a  petition 
under  oath,  containing  the  same  statements  as  the  decree,  and 
also  stating  "that  the  said  defendant  may  be  found  in  Clinton, 
State  of  New  York,  and  that  in  said  Clinton  is  kept  the  post- 
office  which  is  nearest  to  the  place  where  the  defendant  may 
be  found."  On  the  same  day,  pursuant  to  the  requirements  of 
the  statutes  of  Kentucky,  the  <;lerk  made  an  order,  warning 
the  defendant  to  appear  within  sixty  days  and  answer  the 
petition,  and  appointing  John  C.  Walker,  an  attorney  of  the 
court,  to  defend  for  her  and  in  her  behalf,  and  to  inform  her 
of  the  nature  and  pendency  of  the  suit.  On  February  6,  1893, 
Walker  filed  his  report,  in  which  he  stated:  "On  this,  the 
5th  day  of  January,  1893,  I  wrote  to  said  defendant,  Mary  G. 
Atherton,  at  Clinton,  in  the  State  of  New  York,  fully  advis- 

tion  from  the  child,  notwithstanding  such  parent  jnay  have  again  mar- 
ried. 

g.  ,  If  a  divorce  shall  be  granted,  this  agreement,  so  far  as  it  con- 
cerns provision  for  Mary  G.  Atherton,  shall  be  carried  into  the  decree, 
as  in  full  satisfaction  of  all  claim  for  alimony,  and  so  far  as  concerns 
provision  for  and  custody  of  the  child,  reserving  to  the  court  the  usual 
power  to  provide  against  events  and  contingencies  not  covered  by  this 
agreement. 

Witness  the  signatures  of  all  the  parties  this  October  10th,  1891. 

HENBY  P.  GOODENOW. 

MABY  G.  ATHEBTON. 

PETEB  LEE  ATHERTON. 

498 


VIIIKKTON    V.   ATHKKTON 

ing  her  of  the  objects  ;m<l  purposes  of  this  action,  stating 
therein  a  substantial  copy  of  the  petition,  &c.,  plainly  directed 
>aid  letter  tn  ber  at  said  place,  paid  the  postage,  had  printe<l 
mi  the  envelop*-  enclosing  it,  'If  not  delivered  in  ten  days  re- 
turn to  -hiM.  ('.  Walker,  attorney  at  law.  No.  516  West  Jeffer- 
son street.  I>ouis\  ille.  Ky.'  Said  letter  has  not  been  returned 
to  me.  I  have  received  no  answer  thereto  from  said  defend- 
ant or  any  one  else  for  her.  and  do  not  know  nor  am  I  advised 
of  any  defence  to  make  for  her,  and  make  none,  only  that 
which  the  law  in  such  cases  makes  for  non-resident  defend- 
ants." The  agreement  of  October  1(1.  1891,  before  mentionedr 
and  certain  depositions,  set  forth  in  full,  taken  at  « various 
dates  from  February  23  to  March  3,  1893,  were  filed  in  the 
cause  in  Kentucky  before  the  hearing. 

It  was  agreed  that  either  party  might  refer  to  any  statute 
of  the  State  of  Kentucky,  or  decision  of  its  courts. 

The  Supreme  Court  of  New  York  found  that  the  wife  "wa> 
not  personally  served  with  process  within  the  State  of  Ken- 
tucky, or  at  all,  nor  did  she. in  any  manner  appear,  or  author- 
ize-an  appearance  for  her,  in  the  said  action  and  proceeding;" 
and  that  before  the  commencement  of  that  suit,  and  ever 
since,  she  had  ceased  to  be  a  resident  of  Kentucky,  and  had 
become  and  was  a  resident  of  the  State  of  New  York,  domi- 
ciled and  residing  in  Clinton,  with  her  child. 

The  court  decided  that  the  decree  in  Kentucky  was  inopera- 
live  and  void  as  against  the  wife,  and  no  bar  to  this  action; 
and  gave  judgment  in  her  favor  for  a  divorce  from  bed  and 
hoard,  and  for  the  custody  of  the  child,  and  for  the  support  of 
herself  and  the  child. 

That  judgment  was  affirmed  by  the  general  term  of  the  Su- 
preme Court  of  New  York,  and  by  the  Court  of  Appeals  of 
the  State.  82  Hun,  179;  !.">  N.  Y.*  129. 

The  defendant  sued  out  this  writ  of  error,  on  the  ground 
that  the  judgment  did  not  give  full  faith  and  credit  to  the  de- 
cree of  the 'court  in  Kentucky,  as  required  by  the  Constitution 
and  laws  of  the  United  States.' 

Mr.  Alexander  Pope -Humphrey  for  plaintiff  in  error.  Mr. 
George  M.  Davie  was  on  his  brief. 

Mr.  William  Kernati  for  defendant  in  error. 

499 


APPENDIX 

MR.  JUSTICE  GRAY,  after  stating  the  case  as  above,  delivered 
ihe  opinion  of  the  court. 

Opinion  of  the  Court. 

The  first  section  of  the  fourth  article  of  the  Constitution  of 
the  United  States  is  as  follows:  "Full  faith  and  credit  shall 
be  given  in  each  State  to  the  public  acts,  records  and  judicial 
proceedings  of  every  other  State.  And  the  Congress  may,  by 
general  laws,  prescribe  the  manner  in  which  such  acts,  records 
and  proceedings  shall  be  proved,  and  the  effect  thereof."  This 
section  was  intended  to  give  the  same  conclusive  effect  to  the 
judgments  of  all  the  States,  so  as  to  promote  certainty  and 
uniformity  in  the  rule  among  them.  And  Congress,  in  the  ex- 
ercise of  the  power  so  conferred,  besides  prescribing  the  man- 
ner in  which  the  records  and  judicial  proceedings  of  any  State 
may  be  authenticated,  has  defined  the  effect  thereof,  by  en- 
acting that  "the  said  records  and  judicial  proceedings,  so 
authenticated,  shall  have  such  faith  and  credit  given  to  them  in 
every  court  within  the  United  States  as  they  have  by  law  or 
usage  in  the  courts  of  the  State  from  which  they  are  taken." 
Rev.  Stat.  §  905,  reenacting  act  of  May  26,  1790,  c.  11,  1  Stat. 
122;  Huntington  v.  Attrill,  (1892)  146  U.  S.  657,  684. 
'  By  the  General  Statutes  of  Kentucky  of  1873,  c.  52,  art.  3, 
courts  of  equity  may  grant  a  divorce  for  abandonment  by  one 
party  of  the  other  for  one  year ;  petitions  for  divorce  must  be 
brought  in  the  county  where  the  wife  usually  resides  if  she 
has  an  actual  residence  in  the  State ;  if  not,  then  in  the  county 
of  the  husband's  residence;  and  shall  not  be  taken  for  con- 
fessed, or  be  sustained  by  confessions  of  the  defendant  alone, 
but  must  be  supported  by  other  proofs. 

By  the  Civil  Code  of  Practice  of  Kentucky  of  1876,  tit.  4, 
c.  2,  art.  2,  if  a  defendant  has  been  absent  from  the  State  four 
months,  and  the  plaintiff  files  an  affidavit  stating  in  what 
country  the  defendant  resides  or  may  be  found  and  the  name 
of  the  place  wherein  a  post-office  is  kept  nearest  tp  the  place 
where  the  defendant  resides  or  may  be  found,  the  clerk  may 
make  an  order  warning  the  defendant  to  defend  the  action 
within  sixty  days;  and  shall  at  the  same  time  appoint,  as 
attorney  for  the  defendant,  a  regular  practising  attorney  of 
the  court,  whose  duty  it  shall  be  to  make  diligent  efforts  to 
inform  the  defendant  by  mail  concerning  the  pendency  and 
nature  of  the  action  against  him,  and  to  report  to.  the  court 

500 


ATIIKKTMN     V.    ATI  [  UiTi  >  N 

the  result  of  his  efforts;  and  a  defendant  against  whom  a 
warning  order  is  made,  and  for  whom  an  attorney  is  appoint- 
ed, is  deemed  to  have  been  constructively  summoned  on  the 
thirtieth,  day  thereafter,  and  the  action  may  proceed  accord- 
ingly- 

In  accordance  with  these  statutes,  on  December  28,  1892, 
i lie  Imsliaiul  filed  in  a  proper  court  of  Kentucky  a  petition, 
under  oath,  for  a  divorce  from  the  bond  of  matrimony,  alleg- 
ing his  wife's  abandonment  of  him  ever  since  October,  1891, 
and  that  she  had  been  absent  from  the  State  for  more  than 
four  months,  and  might  be  found  at  Clinton  in  the  State  of 
New  York,  and  that  in  Clinton  was  kept  the  postoffice  nearest 
the  place  where  she  might  be  found;  and  the  cferk  entered 
a  warning  order,  and  appointed  an  attorney  at  law  for  the 
defendant.  On  January  .".,  18,93,  that  attorney  wrote  to  the 
wife  at  Clinton,  fully  advising  her  of  the  object  of  the  peti- 
tion for  divorce,  and  enclosing  a  copy  thereof,  in  a  letter  ad- 
dressed i«i  her  by  mail  at  that  place,  and  having  printed  on 
the  envelope  a  direction  to  return  it  to  him,  if  not  delivered 
\\iihin  ten  days.  On  February  6,  1893,  the  attorney,  not  hav- 
ing received  that  letter  again,  or  any  answer  from  the  de- 
fendant, or  in  her  behalf,  made  his  report  to  the  court.  And 
on  Man-h  14,  IS!).0.,  the  court,  after  taking  evidence,  including 
an  agreement  made  by  the  parties  in  Kentucky,  October  10, 
1891,  as  to  the  domicil,  custody  and  support  of  their  child, 
granted  to  the  husband  an  absolute  divorce  for  his  wife's 
abandonment  of  him. 

There  can  be  no  doubt  that  this  decree  was  by  law  and 
usage  entitled  to  full  faith  and  credit  as  an  absolute  decree 
of  divorce  in  the  State  of  Kentucky.  The  Court  of  Appeals 
of  that  State  has  held  that,  under  its  statutes,  a  wife  resid- 
ing in  the  State  was  entitled  to  obtain  a  decree  of  divorce 
against  a  husband  who  had  left  the  State,  or  who  had  never 
been  within  it;  and  Chief  Justice  Robertson  said:  ''It  would 
be  a  reproach  to  our  legislation  if  a  faithless  husband  in 
Kentucky  could,  by  leaving  the  State,  deprive  his  abandoned 
wife  of  a  power  of  obtaining  a  divorce  at  home."  RhymA  v. 
Ifliittns,  (1870)  7  Bush,  316;  Pewl  \.  /Vrrrf.  iisilli  91  Ken- 
tucky, 034.  That  court  has  recognized  that  the  regulation  of 
divorce  belongs  to  the  legislature  of  the  domicil  of  the  parties. 
Maguire  v.  Maguire,  (1838)  7  Dana,  181,  185-187.  And  the 
same  court,  where  husband  and  wife  have  lived  together  in 

501 


APPENDIX 

Kentucky,  aud  she  abandoned  him,  and  he  became  a  bona  fide 
citizen  of  Indiana,  held  that  a  divorce  from  the  bonds  of 
matrimony,  obtained  by  him  against  the  wife  in  that  State, 
by  proceedings  on  constructive  service,  and  according  to  the 
laws  of  that  State,  determined  the  status  of  the  parties  in 
Kentucky.  Hawkins  \.  Ragsdale,  (1882)  80  Kentucky,  353. 

There  is  a  weight  of  authority  in  accord  with  the  views 
maintained  by  the  Court  of  Appeals  of  Kentucky,  although 
there  are  some  decisions  of  learned  courts  to  the  contrary. 

The  purpose  and  effect  of  a  decree *>f  divorce  from  the  bond 
of  matrimony,  by  a  court  of  competent  jurisdiction,  are  to 
change  the  existing  status  or  domestic  relation  of  husband 
and  wife,  and  to  free  them  both  from  the  bond.  The  marriage 
tie,  when  thus  severed  as  to  one  party,  ceases  to  bind  either. 
A  husband  without  a  wife,  or  a  wife  without  a  husband,  is 
unknown  to  the  law.  When  the  law  provides,  in  the  nature  of 
a  penalty,  that  the  guilty  party  shall  not  nmrry  again,  that 
party,  as  well  as  the  other,  is  still  absolutely  freed  from  the 
bond  of  the  former  marriage. 

The  rule  as  to  the  notice  necessary  to  give  full  effect  to  a 
decree  of  divorce  is  different  from  that  which  is  required  in 
suits  in  personam. 

In  Pewtwyer  v.  Neff,  (1877)  95  U.  S.  714,  734,  this  court, 
speaking  by  Mr.  Justice  Field,  while  deciding  that  a  judg- 
ment of  a  state  court  on  a  debt  could  not  be  supported  with- 
out personal  service  on  the  defendant  within  the  State  or  his 
appearance  in  the  cause,  took  occasion  to  say:  "To  prevent 
any  misapplication  of  the  views  expressed  in  this  opinion,  it 
is  proper  to  observe  that  we  do  not  mean  to  assert,  by  any- 
thing we  have  said,  that  a  State  may  not  authorize  proceed- 
ings to  determine  the  status  of  one  of  its  citizens  towards  a 
non-resident,  which  would  be  binding  within  the  State,  though 
made  without  service  of  process  or  personal  notice  to  the 
non-resident.  The  x  jurisdiction  which  every  State  possesses 
to  determine  the  civil  status  and  capacities  of  all  its  inhabi- 
tants involves  authority  to  prescribe  the  conditions  on  which 
the  proceedings  affecting  them  may  be  commenced  and  carried 
on  within  its  territory.  The  State,  for  example,  has  absolute 
right  to  prescribe  the  conditions  .upon  which  the  marriage 
relation  between  its  own  citizens  shall  be  created,  and  the 
causes  for  which  it  may  be  dissolved.  One  of  the  parties, 
guilty  of  acts  for  which,  by  the  law  of  the  State,  a  dissolu- 

'502 


ATHI:I;TO\  v.  ATHKUTOX 

tion  may  lie  ^ranted,  may  have  remove*!  to  a  State  where  no 
dissolution  is  permitted.  The  complaining:  party  would  there- 
fore fail  if  a  divorce  were  sought  in  the  State  of  the  defend- 
;nii  ;  and  if  application  could  not  be  made  to  the  tribunals 

of  the  complainant's  doniicil  in  such  case,  and  proceedings  I.e 
there  instituted  without  personal  service  of  process  or  per- 
sonal notice  to  the  oU'endinj;  party,  the  injured  ciii/.en  would 
lie  without  redress.  2  Bishop  on  Marriage  and  Divorce,  § 
I  :,<;." 

In  rf//rr/r;/  v.  Clayton,  (1884)  110  U.  8.  701,  which  involved 
the  validity  of  a  decree  of  divorce,  obtained  in  Colorado  by  a 
husband  domiciled  there,  agains!  his  wife  for  unjustifiably  re- 
fusing to  live  with  him,  this  court  said:  ''The  courts  of  the 
State  of  the  doniicil  of  the  parties  doubtless  have  jurisdiction 
to  decree  a  divorce  in  accordance  with  its  laws,  for  any  cause 
allowed  by  those  laws,  without  regard  to  the  place  of  the  mar- 
riage, or  to  that  of  the  commission  of  the  offence  for  which 
the  divorce  is  granted;  and  a  divorce  so  obtained  is  valid 
everywhere.  Story.  Conflict  of  Laws,  §  230a;  Cheever  v.  H"/7 
.so//.'«i  Wall,  ins;  Harrr,/  v.  l-'tirnir.  8  App.  Cas.  43.  If  a  wife 
is  living  apart  from  her  husband  without  sufficient  cause,  his 
doniicil  is  in  law  her  doniicil:  and  in  the  absence  of  any 
proof  of  fraud  or  misconduct  on  his  part,  a  divorce  obtained 
by  him  in  the  State  of  his  domicil,  after  reasonable  notice  to 
Tier,  either  by  personal  service  or  by  publication  in  accord- 
ance with  its  laws,  is  Valid,  although  she  never  in  fact  resided 
in  that  State.  Burl-en  v.  N////////O//.  ll."»  Mass.  438;  Hunt  v. 
Hunt,  72  N.  Y.  218.  But  in  order  to  make  the  divorce  valid, 
either  in  the  State  in  which  it  is  granted  or  in  another  State, 
there  must,  unless  the  defendant  appeared  in  the  suit,  have 
been  such  notice  to  her  as  the  law  of  the  first  State  requires." 
110  IT.  S.  705.  In  that  case  the  decree  of  divorce  was  held 
void,  because  the  notice  required  by  the  laws  of  the  State  had 
not  been  given ;  and  the  finding  of  the  court  below  th'at  the 
wife,  at  the  time  of  the  proceedings  for  divorce,  was  a  citizen 
and  resident  of  the  State  of  Illinois,  was  given  no  weight, 
because,  as  this  court  said,  it  was  hard  to  see  how,  if  she  un- 
justifiably refused  to  live  with  her  husband  in  Colorado,  she 
could  lawfully  acquire  in  his  lifetime  a  separate  domicil  in 
another  State;  or  how,  if  the  Colorado  court  had  jurisdiction 
to  render  the  decree  of  divorce,  and  did  render  it  upon  the 
ground  of  her  unlawful  absence  from  him,  the  finding  of  the 

503 


APPENDIX 

court  below  <?ould  consist  with  the  fact  so  adjudged  in  the  de^ 
cree  of  divorce.     110  U.  S.  709. 

In  Harding  v.  Alden,  (1832)  9  Greenl.  140,  the  husband 
and  wife  lived  together  in  Maine.  He  deserted  her,  and  took 
up  a  residence  in  North  Carolina,  and  there  married  and  lived 
with  another  woman.  The  first  wife  then  moved  to  and  re- 
sided in  Providence,  Rhode  Island,  and  there  filed  a  libel  in 
the  Supreme  Judicial  Court  for  an  absolute  divorce  against 
him  for  his  desertion  and  adultery;  and  the  court,  after  ser- 
vice of  a  citation  on  him,  and  two  continuances  of  the  cause, 
decreed  a  divorce  as  prayed  for.  The  husband  was  never  an 
inhabitant  of  Rhode  Island.  The  wife  afterwards  married 
another  man.  The  Supreme  Judicial  Court  of  Maine,  in  an 
opinion  delivered  by  Mr.  Justice  Weston,  held  that  the  divorce 
in  Rhode  Island  dissolved  the  bond  of  marriage  between  the 
parties ;  and  said :  "If  we  refuse  to  give  full  faith  and  credit 
to  the  decree  of  the  Supreme  Judicial  Court  of  Rhode  Island, 
because  the  party  libelled  had  his  domicil  in  another  State, 
and  was  not  within  their  jurisdiction,  we  refuse  to  accord  ta 
the  decrees  of  that  court  the  efficacy  we  claim  for  our  own, 
when  liable  to  the  same  objection.  In  the  case  before  us,  it 
is  agreed  that  the  party  injured  was  at  the  time  an  inhabi- 
tant of  Rhode  Island,  residing  in  Providence,  and  this  fact  is 
recited  in  the  decree.  It  appears  that  by  order  of  the  court 
a  citation  was  served  upon  the  defendant  in  person;  and  that 
a  continuance  was  twice  granted,  to  give  him  an  opportunity 
to  appear  in  defence.  This  shows  a  due  regard  to  that  princi- 
ple of  justice,  which  gives  to  the  party  accused  the  right  to 
be  heard.  The  decree  was  rendered  by  the  highest  judicial 
tribunal  in  that  State.  As  it  belongs  to  that  tribunal  to  de- 
clare, authoritatively  and  definitely,  what  the  law  of  the  State 
is,  we  are  bound  to'  infer  that  by  that  law  the  bonds  of  matri- 
mony, previously  existing  between  the  libellant  and  her  for- 
mer husband,  were  thereby  dissolved;  and  that  such  is  the 
effect  of  the  decree  within  the  State  of  Rhode  Island."  9 
Greeul.  148.  "There  would  be  great  inconvenience  in  holding 
that  a  divorce  decreed  in  the  State  where  the  injured  party 
resided  might  not  be  held  valid  through  the  Union,  where  the 
right  of  citizenship  is  common,  where  the  party  accused  had 
established  his  domicil  in  another  State,  and  there  committed 
adultery.  And  this  is  the  only  objection  to  the  efficacy  of  the 
decree  in  question;  it  being  insisted  that  the  court  had  no 

504 


N   \ .  ATIII:I:TO.\ 

jurisdiction  over  the  absent  party.  As  has  been  before  inti- 
mated, ii  would  apply  with  equal  force  to  many  divorces  de- 
creed in  this  State.  It  would  require  that  the  wife,  abandon- 
ed MIK!  dishonored,  should  seek  the  new  domicil  of  the  guilty 
husband,  anvmo  manendi,  before  she  could  claim  the  benefit 
of  the  law  to  be  relieved  from  his  control.  In  giving  effect 
here  to  the  divorce  decreed  in  Rhode  Island,  we  would  wish 
to  be  understood,  that  fhe  ground  upon  which  we  place  our 
decision  is  limited  to  the  dissolution  of  thfe  marriage.  In  the 
libel,  alimony  was  prayed  for;  and  certain  personal  property, 
then  in  the  possession  of  the  wife,  was  decreed  to  her.  Had 
the  court  awarded  her  a  gross  sum,  or  a  weekly  or  an  annual 
allowance,  to  be  paid  by  the  husband,  and  the  courts  of  this 
or  any  other  State  had  been  resorted  to  to  enforce  it,  a  differ- 
ent question  would  be  presented."  9  Greenl.  151. 

Chancellor  Kent,  in  his  Commentaries,  says  of  that  case 
that  it  was  there  held  "that  a  decree  of  divorce  did  not  fall 
within  the  rule  that  a  judgment  rendered  against  one  not 
within  the  State,  nor  bound  by  its  laws,  nor  amendable  to 
its  jurisdiction.  \vas  not  entitled  to  credit  against  the  de- 
fendant in  another  State;  and  that  divorces  pronounced  ac- 
cording to  the  law  of  one  jurisdiction,  and  the  new  relations 
thereupon  formed,  ought  to  be  recognized,  in  the  absence  of 
all  fraud,  as  operative  and  binding  everywhere,  so  far  as  re- 
lated to  the  disaolntinn  of  the  marriage,  though  not  as  to 
other  parts  of  the  decree,  such  as  an  order  for  the  payment  of 
money  by  the  husband."  And  the  Chancellor  adds,  "This  is 
an  important  and  valuable  decision."  '2  Kent  Com.  110. 
note. 

In  Ditson  v.  Dltson,  (1856)  4  Rhode  Island.  s7,  (of  which 
Judge  Cooley,  in  his  Treatise  on  Constitutional  Limitations, 
403,  note,  says  there  is  no  case  in  the  books  more  full  and 
satisfactory  upon  the  whole  subject  of  jurisdiction  in  divorce 
suits,)  the  Supreme  Court  of  Rhode  Island,  in  an  elaborate 
opinion  by  Chief  Justice  Amesj  affirmed  its  jurisdiction,  upon 
constructive  notice  by  publication,  to  grant  a  divorce  to  a 
wife  domiciled  in  Rhode  Island  against  a  husband  who  had 
never  been  in  Rhode  Island,  and  whose  place  of  residence  was 
unknown:  and  s;iid  :  "It  is  obvious  that  marriage,  as  a  do- 
mestic relation,  emerged  from  the  contract  which  created  it, 
is  known  and  recognized  as  such  throughout  the  civilized 
world;  that  it  gives  rights  and  imposes  duties  and  restric- 

505 


APPENDIX 

tions  upon  the  parties  to  it,  affecting  their  social  and  moral 
condition,  of  the  measure  of  which  every  civilized  State,  and 
certainly  every  State  of  this  Union,  is  the  sole  judge  so  far  as 
its  own  citizens  or  subjects  are  concerned,  and  should  be  so 
deemed  by  other  civilized,  and  especially  sister  States;  that 
a  State  cannot  be  deprived,  directly  or  indirectly,  of  its 
sovereign  power  to  regulate  the  status  of  its  own  domiciled 
subjects  and  citizens,  by  the  fact  that  the  subjects  and  citi- 
zens of  other  States,  as  related  to  them,  are  interested  in  that 
status;  and  in  such  a  matter  has  a  right,  under  the  general 
law,  judicially  to  deal  with  and  modify  or  dissolve  this  rela- 
tion, binding  both  parties  to  it  by  the  decree,  by  virtue  of  its 
inherent  power  over  its  own  citizens  and  subjects,  and  to  en- 
able it  to  answer  their  obligatory  demands  for  justice;  and 
finally,  that  in  the  exercise  of  this  judicial  power,  and  in  order 
to  the  validity  of  a  decree  of  divorce,  whether  a  mensa  et 
thoro  or  a  vinculo  matrimonii,  the  general  law  does  not  de- 
prive a  State  of  its  proper  jurisdiction  over  the  condition  of 
its  own  citizens,  because  non-residents,  foreigners  or  domicil- 
ed inhabitants  of  other  States  have  not  or  will  not  become, 
and  cannot  be  made  to  become,  personally  subject  to  the  juris- 
diction of  its  courts;  but  upon  the  most  familiar  principles, 
and  as  illustrated  by  the  most  familiar  analogies  of  general 
law,  its  courts  may  and  can  act  conclusively  in  such  a  mat- 
ter upon  the  rights  and  interests  of  such  persons,  giving  to 
them  such  notice,  actual  or  constructive,  as  the  nature  of  the 
case  admits  of,  and  the  practice  of  courts  in  similar  cases 
sanctions."  4  Rhode  Island,  105,  106. 

The  statutes  of  Massachusetts  provided  as  follows:  "When 
an  inhabitant  of  this  State  goes  into  another  State  or  country 
to  obtain  a  divorce  for  any  cause  occurring  here,  and  whilst 
the  parties  resided  here,  or  for  any  cause  which  would  not 
authorize  a  divorce  by  the  laws  of  this  State,  a  divorce  so  ob- 
tained shall  be  of  no  force  or  effect  in  this  State.  In  all  other 
cases,  a  divorce  decreed  in  any  other  State  or  country  accord- 
ing to  the  laws  thereof,  by  a  court  having  jurisdiction  of  the 
cause  and  both  the  parties,  shall  be  valid  and  effectual  in 
this  State."  That  provision  made  no  change  in  the  law,  but, 
in  the  words  of  the  Commissioners  upon  whose  advice  it  was 
first  enacted,  "is  founded  on  the  rule  established  by  the 
comity  of  all  civilized  nations;  and  is  proposed  merely  that 
no  doubt  should  arise  on  a  question  so  interesting  and  im- 

506 


ATHERTON   V.  ATHEKTON 

|M»rtant  as  this  mav  sometimes  be."  Gen.  Stat  of  1860,  c. 
107,  §§  54,  :>:,;  Rev.  Stat.  of  1836,  c.  76,  §§  39,  40,  and  note 
of  Commissioners;  Rosa  v.  Ross,  129  Mass.  243,  248. 

In  Hood  v.  Hood,  (1865)  11  Allen,  196,  the  husband  and 
\\ife,  after  living  together  in  Massachusetts,  removed  to 
Illinois,  and  there  lived  together;  the  wife,  "under  circum- 
stances as  to  which  there  was  no  evidence,"  and  afterwards 
the  husband,  came  back  to  Massachusetts,  and,  while  they 
were  living  there  in  his  brother-in-law's  house  for  a  few  weeks, 
he  signed  an  agreement,  reciting  that  they  had  separated,  and 
promising  to  pay  her  a  certain  weekly  sum  so  long  as  she 
should  remain  single.  She  continued  to  reside  in  Massa- 
chusetts; mid  he  obtained  in  Illinois  a  decree  of  divorce  from 
lier  for  her  desertion,  upon  such  notice  as  the  laws  of  Illinois 
authorized  in  the  case  of  an  absent  defendant.  It  was  held 
by  the  Supreme  Judicial  Court  of  Massachusetts,  in  an 
opinion  delivered  by  Mr.  Justice  Hoar,  that  both  parties  had 
their  donncil  in  Illinois,  and  were  subject  to  the  Jurisdiction 
of  its  courts;  and  that  the  fact  of  desertion  by  the  wife  was 
conclusively  settled  between  the  parties  by  the  decree  in 
Illinois,  and  it  was  not  competent  for  the  wife  to  contradict 
it  on  a  libel  afterwards  filed  by  her  in  Massachusetts;  and 
her^  libel  was  dismissed.  And  in  Hood  v.  Hood,  (1872)  110 
Mass.  463,  it  appearing  that  such  dismissal  was  upon  the 
ground  of  the  validity  of  the  previous  decree  of  divorce  in 
Illinois,  it  was  adjudged  that  that-  decree  could  not  be  im- 
peached l.v  the  wife  in  a  writ  of  dower  by  her  against  third 
persons,  the  court  saying:  "The  decree  in  favor  of  her  hus- 
hand.  dismissing  her  libel,  was  then  forever  conclusive  against 
her.  as  between  themselves.  It  severed  the  relation  between 
them;  or  rather  estopped  her  from  averring  anything  to  the 
contrary  of  the  decree  in  Illinois  which  purported  to  sever 
that  relation.  The  general  rule,  however,  in  regard  to  es- 
toppels of  record,  is  that  they  are  good  only  between  the 
parties  of  record  and  their  privies.  They  cannot  be  set  up 
in  collateral  proceedings  between  one  of  those  parties  and 
third  persons.  But  the  effect  of  the  judgment  in  this  case  was 
to  determine  the  status  of  the  demandant.  So  far  as  it  did 
that,  it  is  a  judgment  that  is  operative  and  conclusive  as  to 
all  the  world." 

The  like  view  has  been  affirmed  by  courts  of  other  States. 
v.  stntr.  i  isrilii  L'S  Alabama.  1:5:  l.ritlt  v. 


507 


APPENDIX 

(1859)  39  N.  H.  20,  3943;  Sliafer  v.  Bushnell,  (1869)  24  Wis- 
consin, 372;  Gould  v.  Crow,  (1874)  57  Missouri,  200;  Van  Ors- 
dal  v.  Van  Orsdal,  (1885)  67  Iowa,  35;  Smith  v.  Smith,  (1891) 
43  La.  Ann.  1140;  In  re  James,  (1893)  99  California,  374; 
Dunham  v.  Dunham,  (1896)  162  Illinois,  589,  607-610. 

In  Shaw  v.  jSftaw,  (1867)  98  Mass.  158,  the  husband  and 
wife,  domiciled  in  Massachusetts,  left  the  State  to  take  up 
their  residence  in  Colorado.  In  Pennsylvania,  on  the  journey, 
he  treated  her  with  extreme  curelty,  and  she  left  him  and 
returned  to  Massachusetts,  and  continued  to  reside  there.  It 
was  held  that  while  they  were  in  Pennsylvania  the  domicil 
of  both  parties  remained  in  Massachusetts,  and  that  the  wife 
might  maintain  a  libel  in  Massachusetts  for  the  cause  occur- 
ring in  Pennsylvania,  although  the  husband  before  it  oc- 
curred had  left  Massachusetts  with  the  intention  of  never  re- 
turning, and  never  did  in  fact  return,  and  therefore  no  notice 
was  or  could  be  served  upon  him  in  Massachusetts. 

In  a  very  recent  case,  the  Court  of  Errors  of  New  Jersey 
maintained  the  validity  of  a  divorce  obtained  in  the  State  of 
Utah  by  a  husband,  having  his  bona  fide  domicil  there,  against 
a  wife  whose  domicil  was  in  New  Jersey,  after  publication  of 
the  process  and  complaint  in  accordance  with  the  statutes  of 
Utah,  and  personal  service  upon  the  wife  in  New  Jersey  in 
time  to  enable  her  to  make  defence,  if  she  wished  to  do  so. 
Mr.  Justice  Gummere,  speaking  for  the  Court  of  Errors,  said 
that,  at  least,  "interstate  comity  requires  that  a  decree  of  di- 
vorce, pronounced  by  a  court  of  the  State  in  which  the  com- 
plainant is  domiciled,  and  which  has  jurisdiction  of  the  sub- 
ject-matter of  the  suit,  shall,  in  the  absence  of  fraud,  be  given 
full  force  and  effect  within  the  jurisdiction  of  a  sister  State, 
notwithstanding  that  the  defendant  does  not  reside  within  the 
jurisdiction  of  the  court  which  pronounced  the  decree,  and  has 
not  been  served  with  process  therein;  provided  that  a  sub- 
stituted service  has  been  made  in  accordance  with  the  provi- 
sions of  the  statute  of  that  State,  and  that  actual  notice  of 
the  pendency  of  the  suit  has  been  given  to  the  defendant,  and 
a  reasonable  opportunity  afforded  to  put  in  a  defence  thereto ; 
and  provided,  further,  that  the  ground  upon  which  the  decree 
rests  is  one  which  the  public  policy  of  the  State  in  which  it  is 
sought  to  be  enforced  recognizes  as  a  sufficient  cause  for  di- 
vorce." Felt  v.  Felt,  (1899)  14  Dickinson  (59  N.  J.  Eq.). 
In  New  York,  North  Carolina  and  South  Carolina,  the  op-^ 

508  • 


\.  ATHI:I:TO\ 

|.n;*ite  \ lew  has  prevailed,  either  upon  the  Around  tli;ii  the  rule- 
.1-  in  nut  in-  is  tin-  same  in  suits  for  divorce  as  in  ordinary 
suits  /'//  iH'i-Noiuiin.  or  upon  the  ground  that,  in  the  absence  of 
actual  notice  or  apiH-aram-e,  the  decree,  while  it  may  release 
tin-  lihellaut.  cannot  release  the  lihellce.  from  the  Imiid  of 
matrimony.  /'»/*/*/<•  v.  li<ikn\  ilSTIh  7(5  N.  V.  7S ;  O'h«i  \. 
O'Dea.  i  1885)  101  N.  V.  '2:\ :  In  >•<•  Kinilxill.  (1898)  155  N.  Y. 
8$;  //•/*//  \.  \Vilxnn.  i  is:»,7)  1  Dev.  &  Bat.  Eq.  568;  McCrcery 
v.  Davit,  (1894)  44  So.  Car.  195. 

In  People  v.  Baker,  70  X.  V.  7S,  upon  which  the  subsequent 
decisions  in  New  York  are  based,  the  defendant  was  married 
to  a  woman  in  the  State  of  Ohio;  they  afterwards  lived  to- 
ireiher  in  the  State  of  Xew  York;  the  wife,  upon  notice  by 
publication,  and  without  personal  appearance  of  the  husband, 
he  being  in  New  York,  obtained  a  decree  of  divorce  against 
him  in  Ohio;  and  he  afterwards  married  another  woman  in 
New  York,  and  was  convicted  of  bigamy  there.  The  convic- 
tion was  attirmcd  by  the  Court  of  Appeals,  without  a  sugges- 
tion that  the  first  wife  was  not  domiciled  in  Ohio  at  the  time 
of  the  divorce,  but  stating  the  question  in  the  case  to  be: 
''Can  a  court,  in  another  State,  adjudge  to  be  dissolved  and  at 
an  end  the  matrimonial  relation  of  a  citizen  of  this  State, 
domiciled  and  actually  abiding  here  throughout  the  pendency 
of  the  judicial  proceedings  there,  without  a  voluntary-  appear- 
ance by  him  therein,  and  with  no  actual  notice  to  him  there- 
of, and  without  personal  service  of  process  on  him  in  that 
State?"  The  court  admitted  that  "if  one  party  to  a  proceed- 
ing is  domiciled  in  a  State,  the  status  of  that  party,  as  affect- 
ed by  the  matrimonial  relation,  may  be  adjudged  upon  and 
confirmed  or  changed,  in  accordance  with  the  laws  of  that 
State;"  but  held  that,  without  personal  appearance  or  actual 
notice,  the  decree  could  not  affect  the  matrimonial  relation  of 
the  defendant  in  another  State.  The  court  recognized  that 
the  law  was  settled  otherwise  in  some  States,  and  said:  "It 
remains  for  the  Supreme  Court  of  the  United  Stales,  as  the 
final  arbiter,  to  determine  how  far  a  judgment  rendered  in 
such  a  case,  upon  such  substituted  service  of  process,  shall 
be  operative  without  the  territorial  jurisdicion  of  the  tribu- 
nal giving  it." 

The  authorities  above  cited  show  the  wide  diversity  of  opin- 
ion existing  upon  this  important  subject,  and  admonish  us 
to  confine  our  decisions  to  the  exact  case  before  us. 

v 

509- 


APPENDIX 

This  case  does  not  involve  the  validity  of  a  divorce  granted, 
on  constructive  service,  by  the  court  of  a  State  in  which  only 
one  of  the  parties  ever  had  a  domicil;  nor  the  question  to 
what  extent  the  good  faith  of  the  domicil  may  be  afterwards 
inquired  into.  In  this  case,  the  divorce  in  Kentucky  was  by 
the  court  of  the  State  which  had  always  been  the  undoubted 
domicil  of  the  husband,  and  which  was  the  only  matrimonial 
domicil  of  the  husband  and  wife.  The  single  question  to  be 
decided  is  the  validity  of  that  divorce,  granted  after  such 
notice  had  been  given  as  was  required  by  the  statutes  of  Ken- 
tucky. 

The  husband  always  had  .his  domicil  in  Kentucky,  and  the 
matrimonial  domicil  of  the  parties  was  in  Kentucky.  On  De- 
cember 28,  1892,  the  husband  filed  his  petition  for  a  divorce 
in  the  court  of  appropriate  jurisdiction  in  Kentucky,  alleging 
an  abandonment  of  him  by  the  wife  in  Kentucky,  and  a  con- 
tinuance of  that  abandonment  for  a  year,  which  was  a  cause 
of  divorce  by  the  laws  of  Kentucky.  His  petition  truly 
stated,  upon  oath,  as  required  by  the  statutes  of  Kentucky, 
that  the  wife  might  be  found  at  Clinton  in  the  State  of  New 
York,  and  that  at  Clinton  was  the  post-office  nearest  the  place 
where  she  might  be  found.  As  required  by  the  statutes  of 
Kentucky,  the  clerk  thereupon  entered  a  warning  order  to  the 
wife  to  appear  in  sixty  days,  and  appointed  an  attorney  at 
law  to  represent  her.  The  attorney,  on  January  5,  1893,  wrote 
to  the  wife  at  Clinton,  fully  advising  her  of  the  object  of  the 
petition  for  divorce  and  enclosing  a  copy  thereof,  in  a  letter 
addressed  to  her  by  mail  at  Clinton,  and  having  printed  on 
the  envelope  a  direction  to  return  it  to  him,  if  not  delivered 
in  ten  days.  There  is  a  presumption  of  fact,  though  not  of 
law,  that  a  letter,  put  into  the  post-office  and  properly  ad- 
dressed, is  received  by  thq>  person  to  whom  it  is  addressed. 
Rosenthal  v.  Walker,  (1884)  111  F.  S.  185.  On  February 
<5,1S93,  the  attorney,  having  received  no  answer,  made  his  re- 
port to  the  court.  And  on  March  14,  1893,  the  court,  after 
taking  evidence,  granted  the  husband  an  absolute  decree  of 
divorce  for  his  wife's  abandonment  of  him. 

The  court  of  New  York  has  indeed  found  that  the  wife 
"was  not  personally  served  with  process  within  the  State  of 
Kentucky,  or  at  all."  It  may  be  doubted  whether  this  negatives 
her  having  received,  or  had  knowledge  of,  the  letter  sent  to 
her  by  the  attorney  in  Kentucky,  January  5,  1893,  six  days 

510 


ATllKUK'N    V.  ATHERTON 

before  she  began  her  MUI  in  New  York.  But  assuming  that 
it  docs,  tin-  quest  ion  in  this  case  is  not  whether  she  had  actual 
notice  of  the  proceedings  for  divorce.  Inn  whether  such  rea- 
sun;ihle  steps  had  been  taken  to  give  her  notice,  as  to  bind  her 
liy  tlie  decree  in  the  State  of  the  domicil. 

The  court  in  Ne\v  York  found  that  the  wife  left  the  hus- 
band and  went  to  Clinton  with  the  purpose  and  intention  of 
not  returning  to  the  St;ite  of  Kentucky,  lnit  of  permanently 
residing  in  the  State  of  New  York;  and  that  this  purpose,  and 
intention  were  understood  by  the  husband  at  the  time,  and 
were  contemplated  and  evidenced  by  the  agreement  executed 
l>y  the  parties  in  Kentucky.  October  10.  1S!»1.  But  that  agree- 
ment was  among  the  proofs  submitted  to  the  court  in  Ken- 
tucky, and  may  well  have  been  considered  by  that  court,  as 
the  preamble  to  the  agreement  states,  as  simply  intended  to 
provide  for  the  interest  of  their  child,  recognizing  that  the 
parties  had  ceased  to  live  together  as  husband  and  wife,  but 
"without  in  any  way  acknowledging  upon  whom  is  the  faultr 
or  condoning  the  conduct  of  the  one  or  the  other  which  has 
led  to  the  existing  state  of  affairs,  or  preventing  any  conse- 
quence which  may  follow,  or  right  which  may  arise  to  either 
party  if  such  status  shall  continue."  The  agreement  contains 
no  mention  of  the  domicil  of  either  husband  or  wife,  but  de- 
clares that  the  domicil  of  the  child  is  to  be  the  State  of  Ken- 
tucky, and  is  taken  up  with  providing  that  its  custody  shall 
be  half  of  each  year  with  the  mother,  and  the  other  half  with 
the  paternal  grandmother,  and  with  providing  for  the  sup- 
port and  custody  of  the  child,  in  various  future  contingencies, 
including  the  divorce  and  second  marriage  of  the  husband  or 
of  the  wife. 

We  are  of  opinion  that  the  undisputed  facts  show  that  such 
efforts  were  required  by  the  statutes  of  Kentuckj-,  and  were 
actually  made,  to  give  the  wife  actual  notice  of  the  suit  in 
Kentucky,  as  to  make  the  decree  of  the  court  there,  granting 
a  divorce  upon  the  ground  that  she  had  abandoned  her  hus- 
band, as  binding  on  her  as  if  she  had  been  served  with  notice 
in  Kentucky,  or  had  voluntarily  appeared  in  the  suit.  Bind- 
ing her  to  that  full  extent,  it  established,  beyond  contradic- 
tion, that  she  had  abandoned  her  husband,  and  precludes  her 
from  asserting  that  she  left  him  on  account  of  his  cruel  treat- 
ment. 

To  bold  otherwise  would  make  it  difficult,  if  not  impossible, 

511 


APPENDIX 

for  the  husband  to  obtain  a  divorce  for  the  cause  alleged,  if  it 
actually  existed.  The  wife  not  being  within  the  State  of  Ken- 
tucky, if  constructive  notice,  with  all  the  precautions  pre- 
scribed by  the  statutes  of  that  Sta^te,  were  insufficient  to  bind 
her  by  a  decree  dissolving  the  bond  of  matrimony,  the  hus- 
band could  only  get  a  divorce  by  suing  in  the  State  in  which 
she  was  found;  and  by  the  very  fact  of  suing  her  there  he 
would  admit  that  she  had  acquired  a  separate  domicil,  (which 
he  denied,)  and  would  disprove  his  own  ground  of  action  that 
she  had  abandoned  him  in  Kentucky. 

The  result  is  that  the  courts  of  New  York  have  not  given 
to  the  Kentucky  decree  of  divorce  the  faith  and  credit  which 
it  had  by  law  in  Kentucky,  and  that  therefore  their 

Judgments  must  be  reversed,  and  the  case  remanded  to  the 
Supreme  Court  of  New  York  for  further  proceedings  not 
inconsistent  with  this  opinion. 

MB.   JUSTICE   PECKHAM  and  THE  CHIEF  JUSTICE,   DISSENTING. 

MR.  JUSTICE  PECKHAM,  with  whom  THE  CHIEF  JUSTICE  con- 
•curred,  dissenting. 

I  think  this  case  was  rightly  decided  by  the  Court  of  Ap- 
peals of  New  York,  and  I  therefore  dissent  from  the  judg- 
ment and  the  opinion  of  the  court  herein. 

I  think  if  the  husband  had,  at  his  domicil  in  Kentucky, 
been  guilty  of  such  mis.conduct  and  cruelty  towards  his  wife 
as  entitled  her  to  a  divorce,  she  had  a  legal  right  for  that  rea- 
sqn  to  leave  him  and  to  acquire  a  separate  domicil,  even  in 
another  State.  If,  under  such  circumstances,  she  did  leave 
him,  and  did  acquire  a  separate  domicil  in  New  York  State, 
the  Kentucky  court  did  not  obtain  jurisdiction  over  her  as 
an  absent  defendant,  by  publication  of  process  or  sending  a 
copy  thereof  through  the  mail  to  her  address  in  New  York. 

It  has  long  been  held  that  the  wife  upon  such  facts  could 
acquire  a  separate  domicil.  In  Cheever  v,  Wilson,  9  Wall. 
108,  123,  124,  it  was  so  decided}  and  the  case  of  Ditson  v. 
Ditson,  4  R.  I.  87,  was  therein  cited  with  approval  upon  that 
proposition.  It  was  said  in  the.  Rhode  Island  case  that  "Al- 
though as  a  general  doctrine  the  domicil  of  the  husband  is  by 
law  that  of  the  wife,  yet  when  he  commits  an  offence,  or  is 
guilty  of  such  dereliction  of  duty  in  the  relation  as  entitled 

:512 


\  i  -MUM-ON    \.  AI  MU:IO\ 

her  to  have  the  marriage  either  partially  or  totally  dissolved, 
she  not  only  may  Inn  must,  to  avoid  condonation,  establish  a 
separate  domicil  of  her  own.  This  she  may  establish,  nay. 
when  deserted,  or  compelled  to  leave  her  husband,  necessin 
frequently  compels  her  to  establish  it  in  a  different  judicial 
or  state  jurisdiction  than  that  of  her  husband,  according  in 
the  residence  of  her  family  or  friends.  Under  such  cir< -u in- 
stances she  gains,  and  is  entitled  to  gain,  for  the  ]»ur}M>ses  of 
jurisdiction,  a  domicil  of  her  own."  This  is  also  held  in 
Hunt  v.  Hunt,  72  N.  Y.,  217,  where  many  of  the  authorities 
are  collected. 

By  the  statute  of  New  York  in  force  at  the  time  tin-  |>ai -lies 
were  therein  married,  the  court  had  jurisdiction  to  grant  a 
limited  divorce  on  the  complaint  of  a  married  woman,  where 
the  marriage  had  been  solemnized  in  the  State  and  the  wife 
was  an  actual  resident  therein  at  the  time  of  exhibiting  her 
complaint.  By  virtue  of  this  statute  and  of  the  wife's  resi 
dence  in  New  York  at  the  time  of  exhibiting  her  complaint 
(if  such  residence  were  legally  acquired,  as  already  stated,) 
the  court  in  that  State  had  jurisdiction  of  an  action  for  di- 
vorce against  her  Imshand,  and  jurisdiction  over  the  husband 
wa>  complete  when  he  appeared  in  the  suit.  Having  the  right 
to  acquire  a  residence  in  the  State,  it  was  open  to  her  to 
prove  in  the  divorce  case  which  she  instituted  in  New  York 
the  facts  which  justified  her  leaving  her  husband's  home  in 
Kentucky  and  in  acquiring  a  separate  domicil  in  New  York, 
and  the  decision  of  the  Kentucky  court,  that  it  had  jurisdic- 
tion over  her  in  her  husband's  suit,  was  not  conclusive  against 
her  upon  that  question.  The 'New  York  court  entered  upon 
the  inquiry  and  found  the  fact  that  she  was  justitied  liy  her 
husband's  acts  in  leaving  his  home  and  in  acquiring  a  new 
domicil  for  herself,  and  that  the  Kentucky  conn  therefore  ob- 
tained no  jurisdiction  over  her.  It  also  found  the  facts  neces- 
sary to  warrant  it  in  granting  to  her  a  divorce  under  the 
la\\s  of  New  York,  and  it  granted  one  accordingly.  This  I 
think  the  New  York  court  had  jurisdiction  to  do,  and  it  did 
not  thereby  refuse  the  constitutional  full  faith  to  the  Ken- 
tucky judgment. 

That  a  husband  can  drive  his  wife  from  his  home  by  con- 
duct which  entitles  her  to  a'  divorce,  and  thus  force  her  to 
lind  another  domicil,  and  then  commence  proceedings  in  a 
court  of  his  own  domicil.  for  a  divorce,  which  court  obtains 

513 


APPENDIX 

jurisdiction  over  her  only  by  a  service  of  process  in  the  State- 
of  her  new  domicil,  through  the  mail,  and  that  on  such  service 
he  can  obtain  a  judgment  of  divorce  which  shall  be  conclusive 
against  her  in  her  action  in  the  cqurt  of  her  own  domicil, 
seems  to  me  to  be  at  war  with  sound  principle  and  the  ad- 
judged cases.  The  doctrine  of  status,  even  as  announced  in 
the  opinion  of  the  court,  does  not  reach  the  case  of  a  husband 
by  his  misconduct  rendering  it  necessary  for  the  wife  to  leave 
him.  I  therefore  dissent. 

I  am  authorized  to  state  that  the  CHIEF  JUSTICE  concurs  in 
this  dissent. 


HADDOCK  v.  HADDOCK. 

For  the  official  reference,  see  the  second  page  of  this  Appendix. 

ERROR  TO  THE  SUPREME  COURT  OF  THE  STATE  OF  NEW  YORK. 

No.  119.     Argued  December  11,  1905. — Decided  April  12,  1906. 

The  husband  and  wife  being  domiciled  in  New  York,  the  husband  (left 
the  wife,  acquired,  in  good  faith,  after  a  lapse  of  years,  a  domicil  in 
Connecticut,  and  obtained  in  that  State,  and  in  accordance  with  its 
laws,  a  judgment  of  divorce  based  on  constructive,  and  not  actual, 
service  of  process,  on  the  wife,  who  meanwhile  remained  domiciled 
in  New  York  and  never  appeared  in  the  action.  The  wife  subse- 
quently sued  for  divorce  in  New  York  and  obtained  personal  service 
in  that  State  on  the  husband  who  pleaded  the  Connecticut  judgment. 
Held, 

Without  questioning  the  power  of  the  State  of  Connecticut  to  enforce 
the  decree  within  its  own  borders,  and  without  intimating  any  doubt 
that  the  State  of  New  York  might  give  it  such  degree  of  efficacy 
that  it  might  be  entitled  to  in  view  of  the  public  policy  of  the  State, 
that  the  Connecticut  decree,  rendered  as  it  was  without  being  based 
on  personal  service  of  the  process  on,  and  therefore  without  personal 
jurisdiption  of  the  court  over,  the  wife,  was  not  entitled  to  obligatory 
enforcement  in  the  State  of  New  York  by  virtue  of  the  full  faith 
and  credit  clause  of  the  Federal  Constitution. 

A  suit  for  divorce  brought  in  a  State  other  than  that  of  domicil  of 
matrimony  against  a  wife  who  is  still  domiciled  therein  is  not  a  pro- 
ceeding in  rein  justifying  the  court  to  enter  a  decree  as  to  the  res, 
or  marriage  relation,  entitled  to  be  enforced  outside  of  the  territorial 
jurisdiction  of  the  court. 

Questions  concerning  alleged  fraud  in  contracting  a  marriage  and 
laches  on  the  part  of  one  of  the  parties  in  bringing  an  action  for  di- 
vorce are  matters  solely  of  state  cognizance  and  may  not  even  be 

514 


HADDOCK    V.    HADDOCK 

allowed  to  indirectly  influence  this  court  in  determining  the  Fed- 
eral question  which  is  involved. 

The  States  at  the  time  of  the  adoption  of  the  Constitution  possessed 
full  power  over  the  subject  of  marriage  and  divorce  and  the  Consti- 
tution delegated  no  authority  to  the  Central  Government  in  regard 
thereto,  and  the  destruction  of  the  power  of  the  States  over  the  dis- 
solution of  marriage  as  to  their  own  citizens  cannot  be  brought  about 
by  the  operation  of  the  full  faith  and  credit  clause  of  the  Constitu- 
tion of  the  United  States. 

Previous  decisions  of  this  court  hold  in  regard  to  the  full  faith  and 
credit  to  be  given  by  States  to  the  judicial  decrees  of  other  States 
that: 

The  requirement  is  not  that  some,  but  that  full,  faith  and  credit, 
equal  to  that  to  which  it  is  entitled  in  the  State  where  ren- 
dered, shall  be  given  to  a  judicial  decree  of  another  State. 
Harding,  v.  Harding,  198  U.  S.  317. 

A  personal  judgment  against  a  non-resident — not  a  proceeding  in  rem 
— based  merely  upon  constructive  service  and  therefore  juris- 
diction not  being  acquired  over  the  defendant's  person  may  not 
be  enforced  in  another  State  under  the  full  faith  and  credit 
clause.  Pennoyer  v.  Neff,  95  U.  S.  714. 

All  governments  possess  inherent  power  over  the  marriage  relation, 
its  formation  and  dissolution,  as  regards  their  own  citizens, 
and  where  a  court  or  legislature  of  a  State  has  acted  conform- 
ably with  its  own  laws  concerning  the  marriage  tie  as  to  a 
citizen  of  that  State,  its  action  is  binding  in  that  State  as  to 
that  citizen,  and  its  validity  under  the  due  process  clause  of 
the  Constitution  may  not  therein  be  questioned.  Maynard  v. 
Hill,  125  U.  S.  190. 

As  a  corollary  to  the  power  of  the  State,  irrespective  of  any  extra- 
territorial effect,  any  other  sovereign  may,  under  the  princi- 
ples of  comity  give  to  such  a  decree  the  efficacy  which  its  own 
conception  of  duty  and  public  policy  may  justify. 

Where  a  husband  and  wife  are  domiciled  in  a  State  jurisdiction  ex- 
ists in  that  State,  for  good  cause  to  enter  a  decree  of  divorce, 
entitled  to  enforcement  in  another  State  under  the  full  faith 
and  credit  clause;  and  where  a  bona  fide  domicil  has  been  ac- 
quired in  a  State  by  either  husband  or  wife,  a  decree  of  divorce 
obtained  by  either  in  a  court  having  personal  jurisdiction  of 
the  other  is  likewise  entitled  to  be  so  enforced  in  other  States. 
Cheev&r  v.  Wilson,  9  Wall.  108. 

Where  the  domicil  of  a  matrimony  is  in  a  particular  State,  and  the 
husband  abandoning  the  wife,  wrongfully  goes  into  another 
State  in  order  to  avoid  his  marital  obligation,  such  other  State 
does  not  become  a  new  domicil  of  matrimony,  nor  the  actual 
or  constructive  domicil  of  the  wife.  That  continues  in  the 
original  State  until  she  actually  acquires  a  new  one.  Barber 
v.  Barber,  21  How.  582. 

Where  the  domicil  of  the  husband  is  in  a  particular  State,  which  is 
also  the  domicil  of  matrimony,  the  courts  of  that  State  may, 
in  virtue  of  the  wife's  duty  to  be  at  the  matrimonial  domicil. 

515 


APPENDIX 

disregard  her  unjustifiable  absence  therefrom  and  treat  her  as 
having  her  domicil  therein  for  the  purpose  of  dissolving  the 
marriage  and  render  a  judgment  to  that  effect  entitled  to 
recognition  in  all  other  States  under  the  full  faith  and  credit 
clause  of  the  Constitution.  Atherton  v.  Atherton,  181  U.  S. 
155. 

THE  facts,  which  involved  the  full  faith  and  credit  to  be 
given  by  the  courts  of  the  State  of  New  York  to  a  decree  of 
divorce,  obtained  in  Connecticut  by  the  husband,  formerly  a 
resident  of  New  York,  from  his  wife  -still  residing  in  New 
York,  based  on  substituted  service  of  the  summons,  are  stated 
in  the  opinion. 

Mr.  A~bram  J.  Rose,  with  whom  Mr.  William  H.  Willits  and 
Mr.  Alfred  C.  Pette  were  on  the  brief,  for  plaintiff  in  error. 

Mr.  Henri/  Willis  Smith,  with  whom  Mr.  William  T.  Tom- 
linson  and  Mr.  William  W.  Smith  were  on  the  brief,  for  de- 
fendant in  error. 

MR.  JUSTICE  WHITE  delivered  the  opinion  of  the  court. 

Opinion  of  the  Court. 

The  plaintiff  in  error  will  be  called  the  husband  and  the  de- 
fendant in  error  the  wife. 

The  wife,  a  resident  of  the  State  of  New  York,  sued  the  hus- 
band in  that  State  in  1899,  and  there  obtained  personal'  service 
upon  him.  The  complaint  charged  that  the  parties  had  been 
married  in  New  York  in  1868,  where  they  both  resided  and 
where  the  wife  continued  to  reside,  and  it  was  averred  that 
the  husband,  immediately  following  the  marriage,  abandoned 
the  wife,  and  thereafter  failed  to  support  her,  and  that  he  wras 
the  owner  of  property.  A  decree  of  separation  from  bed- and 
board  and  for  alimony  was  prayed.  The  answer  admitted  the 
marriage,  but  averred  that  its  celebration  was  procured  by  the 
fraud  of  the  wife,  and  that  immediately  after  the  marriage 
the  parties  had  separated  by  mutual  consent.  It  was  also 
alleged  that  during  the  long  period  between  the  celebration 
and  the  bringing  of  this  action  the  wife  had  in  no  manner 
asserted  her  rights  and  was  barred  by  her  laches  from  doing 
so.  Besides,  the  answer  alleged  that  the  husband  had.  in 
1881,  obtained  in  a  court  of  the  Stata  of  Connecticut  a  di- 

516 


II  \  I  >!>•>(  K     V.    I!  A I H  K»CK 

\orce  which  was  conclusive.  A i  the  trial  before  a  referee  the 
judgment  roll  in  tin-  suit  for  divorce  in  Connecticut  was  offer- 
ed I iy  the  husband  and  was  objected  t<>.  first,  because  the  Con- 
necticut court  had  not  obtained  jurisdiction  o\er  the  person 
of  the  defendant  wife,  as  the  notice  of  tin-  pendency  of  the 
petition  \\a-  by  publication  and  she  had  not  appeared  in  the 
action;  and.  second,  because  the  ground  upon  which  the  di- 
vorce \vas  granted.  \  \v...  desertion  by  the  \vife.\vasfalse.  The 

referee  MISI ained  the  objections  and  an  exception  was  noted. 
The  judgment  roll  in  question  \vas  then  marked  for  identiti- 
cation  and  forms  a  part  of  the  record  before  us. 

Having  thus  excluded  the  proceedings  in  the  Connect  inn 
court,  the  referee  found  that  the  parties  were  married  in  Ne\v 
York  in  isr>s.  that  the  wife  was  a  resident  of  the  State  of 
New  York,  that  after  the  marriage  the  parties  never  lived  to- 
gether, and  shortly  thereafter  that  the  husband  without  justi- 
fiable cause  abandoned  the  wife,  and  has  since  neglected  to 
provide  for  her.  The  legal  conclusion  was  that  the  wife  was 
entitled  to  a  separation  from  bed  and  board  and  alimony  in 
the  sum  of  sTsil  a  year  from  the  date  of  the  judgment.  The 
action  of  the  referee  was  sustained  by  the  Supreme  Votirt  of 
the  State  of  New  York,  and  a  judgment  for  separation  and 
alimony  was  entered  in  favor  of  the  wife.  This  judgment  was 
aftirmed  by  the  Court  of  Appeals.  As  by  the  law  of  the  Slate 
of  New  York,  after  the  affirmance  by  the  Court  of  Appeals, 
the  record  was  remitted  t«j  the  Supreme  Court,  this  writ  of 
error  to  that  court  was  prosecuted. 

The  Federal  question  is.  Did  the  court  below  violate  the 
Constitution  of  the  Tnited  Stales  by  refusing  to  give  to  the 
decree  of  divorce  rendered  in  the  State  of  Connecticut  the 
faith  and  credit  to  which  it  was  entitled? 

As  the  averments  concerning  the  alleged  fraud  in  contract- 
ing the  marriage  and  the  subsequent  laches  of  the  wife  are 
solely  matters  of  state  cognizance,  we  may  not  allow  them  to 
even  indirectly  influence  our  judgment  U]M>II  the  Federal  ques- 
tion to  which  we  are  confined,  and  we.  therefore,  put  these 
subjects  entirely  out  of  view.  Moreover,  as.  for  the  pm-jiov,.  ,,!' 
the  Federal  issue,  we  are  concerned  not  with  the  mere  form  of 
proceeding  by  which  the  Federal  right,  if  any.  was  denied, 
but  alone  ha\e  power  to  decide  whether  such  right  was  denied, 
we  do  not  inquire  whether  the  New  York  court  should  pre- 
ferably have  admitted  the  record  of  tfie  Connecticut  divorce 

517 


APPENDIX 

suit,  and,  after  so  admitting  it,  determine  what  effect  it  would 
give  to  it  instead  of  excluding  the  record  and  thus  refusing 
to  give  effect  to  the  judgment.  In  order  to  decide  whether 
the  refusal  of  the  court  to  admit  in  evidence  the  Connecticut 
decree  denied  to  that  decree  the  efficacy  to  which  it  was  en- 
titled under  the  full  faith  and  credit  clause,  we  must  first  ex- 
amine the  judgment  roll  of  the  Connecticut  cause  in- order  to 
fix  the  precise  circumstances  under  which  the  decree  in  that 
cause  was  rendered. 

Without  going  into  detail,  it  suffices  to  say  that  on  the  face 
of  the  Connecticut  record  it  appeared  that  the  husband,  alleg- 
ing that  he  had  acquired  a  domicil  in  Connecticut,  sued  the 
wife  in  that  State  as  a  person  whose  residence  was  unknown, 
but  whose  last  known  place  of  residence  was  in  the  State  of 
New  York,  at  a  place  stated,  and  charged  desertion  by  the 
wife  and  fraud  on  her  part  in  procuring  the  marriage;  and, 
further,  it  is  shown  that  no  service  was  made  upon  the  wife 
except  by  publication  and  by  mailing  a  copy  of  the  petition  to 
her  at  her  last  known  place  of  residence  in  the  State  of  New 
York. 

With  the  object  of  confining  our  attention  to  the  real  ques- 
tion arising  from  this  condition  of  the^Connecticut  record,  we 
state  at  the  outset  certain  legal  propositions  irrevocably  con- 
cluded by  previous  decisions  of  this  court,  and  which  are  re- 
quired to  be  borne  in  mind  in  analyzing  the  ultimate  issue  to 
be  decided; 

First.  The  requirement  of  the  Constitution  is  not  that  some. 
but  that  full,  faith  and  credit  shall  be  given  by  States  to  the 
judicial  decrees  of  other  States.  That  is  to  say,  where  a  de- 
cree rendered  in  one  State  is  embraced  by  the  full  faith  and 
credit  clause  that  constitutional  provision  commands  that  the 
other  States  shall  give  to  the  decree  the  force  and  effect  to 
which  it  was  entitled  in  the  State  where  rendered.  Harding 
v.  Harding,  198  U.  S.  317. 

Second.  Where  a  personal  judgment  has  been  rendered  in 
the  courts  of  a  State  against  a  non-resident  merely  upon  con- 
structive service,  and,  therefore,  without  acquiring  jurisdic- 
tion over  the  person  of  the  defendant,  such  judgment  may  not 
be  enforced  in  another  State  in  virtue  of  the  full  faith  and 
credit  clause.  Indeed,  a  personal  judgment  so  rendered  is  by 
operation  of  the  due  process  clause  of  the  Fourteenth  Amend- 
ment void  as  against  the  non-resident,  even  in  the  State  where 

518 


II  M'lMM  K     V.    HADDOCK 

rendered,  and.  therefore,  such  non-resident  in  virtue  of  rights 
-united  by  the  Constitution  of  the  United  States  may  suc- 
cessfully resist  even  in  the  State  where  rendered,  the  enforce- 
ment of  Midi  a  judgment.  Pewnoyer  v.  Neff,  95  U.  8.  714. 
The  facts  in  that  case  were  these:  Neff,  who  was  a  resident 
of  a  State  other  than  Oregon,  owned  a  tract  of  land  in  Oregon. 
Mitchell.  ;i  resident  of  Oregon,  brought  a  suit  in  a  court  of 
tlmi  Slate  upon  a  money  demand  against  Neff.  The  Oregon 
statutes  required,  iii  the  case  of  personal  action  against  a  non- 
resident, a  jMililication  of  notice,  calling  upon  the  defendant 
to  appear  and  defend,  and  also  required  the  mailing  to  such 
defendant  at  liis  last  known  place  of  residence  of  a  copy  of 
tin-  summons  and  complaint.  !']H»n  affidavit  of  the-  absence  ,>l 
Neff,  and  that  he  resided  in  the  State  of  California,  the  exact 
(dace  lieinii  unknown,  the  publication  required  by  the  statute 
was  ordered  and  made,  and  judgment  by  default  was  entered 
against  NYtl'.  Upon  this  judgment  execution  was  issued  and 
real  estate  of  Nefl  was  sold  and  was  ultimately  acquired  by 
I 'en  nover.  Neff  sued  in  the  Circuit  Court  of  the  United 
States  for  i he  District  of  Oregon  to  recover  the  property,  and 
i he  question  presented  was  the  validity  in  Oregon  of  the 
judgment  there  rendered  against  Neff.  After  the  most  elabo- 
rate consideration  it  was  expressly  decided  that  the  judgment 
rendered  in  Oregon  under  the  circumstances  stated  was  void 
for  want  of  jurisdiction  and  was  repugnant  to  the  due  process 
clause  of  the  Constitution  of  the  United  States.  The  ruling 
was  based  on  the  proposition  that  a  court  of  one  State  could 
not  acquire  jurisdiction  to  render  a  personal  judgment  against 
a  non-resident  who  did  not  appear  by  the  mere  publication  of 
a  summons,  and  that  the  want  of  power  to  acquire  such  juris- 
diction by  publication  could  not  be  aided  by  the  fact  that 
under  the  statutes  of  the  State  in  which  the  suit  against  the 
non-resident  was  brought  the  sending  of  a  copy  of  the  sum 
mons  and  complaint  to  the  post-office  address  in  another  State 
of  the  defendant  was  required  and  complied  with.  The  court 
said  (p.  727)  : 

"Process  from  the  tribunals  of  one  State  cannot  run  into 
another  State,  and  summon  parties  there  domiciled  to  leave 
its  territory  and  respond  to  proceedings  against'  them.  Pub- 
lication of  process  or  notice  within  the  State  where  the  tri- 
bunal sits  cannot  create  any  greater  obligation  upon  the  non- 
to  appear.  I'm.  ess  sent  to  him  out  of  the  State,  and 

519 


APPENDIX 

process  published  within  it,  are  equally  unavailing  in  proceed- 
ings to  establish  his  personal  liability." 

And  the  doctrine  thus  stated  but  expressed  a  general  princi- 
ple expounded  in  previous  decisions.  Bischoff  v.  Wetliered,  9 
Wall.  812.  In  that  case,  speaking  of  a  money  judgment  re- 
covered in  the  Common  Pleas  of  Westminister  Hall,  England, 
upon  personal  notice  served  in  the  city  of  Baltimore,  Mr.  Jus- 
tice Bradley,  speaking  for  the  court,  said  (p.  814)  : 

"It  is  enough  to  say  [of  this  proceeding]  that  it  was  wholly 
without  jurisdiction  of  the  person,  and  whatever  validity  it 
may  have  in  England,  by  virtue  of  statute  law  against  prop- 
erty of  the  defendant  there  situate,  it  can  have  no  validity 
here,  even  of  a  -prima  facie  character.  It  is  simply  null." 

Third.  The  principles,  however,  stated  in  the  previous 
proposition  are  controlling  only  as  to  judgments  in  personam 
and  do  not  relate  to  proceedings  in  rem.  That  is  to  spy,  in 
consequence  of  the  authority  which  government  possesses  over 
things  within  its  borders  there  is  jurisdiction  in  a  court  of  a 
State  by  a  proceeding  in  rem,  after  the  giving  of  reasonable 
opportunity  to  the  owner  to  defend,  to  affect  things  within  the 
jurisdiction  of  the  court,  even  although  jurisdiction  is  not 
directly  acquired  over  the  person  of  the  owner  "of  the  thing. 
Pennoyer  v.  Neff,  supra. 

Fourth.  The  general  rule  stated  in  the  second  proposition 
is,  moreover,  limited  by  the  inherent  power  which  all  govern- 
ments must  possess  over  the  marriage  relation,  its  formation 
and  dissolution,  as  regards  their  own  citizens.  From  this 
exception  it  results  that  where  a  court  of  one  State,  con- 
formably to  the  laws  of  such  State,  or  the  State  through  its 
legislative  department,  has  acted  concerning  the  dissolution 
of  the  marriage  tie,  as  to  a  citizen  of  that  State,  such  action 
is  binding  in  that  State  as  to  such  citizen,  and  the  validity  of 
the  judgment  may  not  therein  be  questioned  on  the  ground 
that  the  action  of  the  State  in  dealing  with  its  own  citizen 
concerning  the  marriage  relation  was  repugnant  to  the  due 
process  clause  of  the  Constitution.  Maynard  v.  Hill,  125 
U.  S.  190.  In  that  case  the  facts  were  these:  Maynard  was 
married  in  Vermont,  and  the  husband  and  wife  removed  to 
Ohio,  from  whence  Maynard  left  his  wife  and  family  and 
went  to  California.  Subsequently  he  acquired  a  domicil  in 
the  Territory  of  Washington.  Being  there  so  domiciled,  an 
act  of  the  legislature  of  the  Territory  was  passed  granting  a 

520 


IIAHIMPCK     V.     II  \IUK.CK 

divorce  to  the  husband.  .Maynard  continued  to  reside  in 
Washington,  and  then-  remarried  .-md  died.  The  children  of 
the  former  wife,  claiming  in  right  of  their  mother,  sued  in  a 
roiiri  of  i In-  Territory  of  Washington  to  recover  real  estaic 
situated  in  ihe  Territory,  and  one  of  the  issues  for  decision 
was  tin-  validity  of  tin-  legislative  divorce  granted  to  the 
father.  The  statute  was  assailed  as  invalid,  on  the  ground 
that  Mrs.  Mavnard  had  no  notiee  and  that  she  was  not  a 
resident  of  t lie  Territory  when  the  act  was  passed.  From  a 
decree  of  the  Supreme  Court  of  the  Territory  adverse  to  their 
claim  the  children  brought  the  case  to  this  court.  The  power 
of  the  territorial  legislature,  in  the  alisence  of  restrictions  in 
the  organic  act.  io  grant  a  divorce  to  a  citi/.en  of  the  Territory 
was.  however,  upheld,  in  view  of  the  nature  and  extent  of  the 
authority  which  government  possessed  over  the  marriage  rela 
tion.  It  was  therefore  decided  that  the  courts  of  the  Terri- 
tory committed  no  error  in  giving  effect  within  the  Territory 
io  the  divorce  in  question.  And  as  a  corollary  of  the  recog- 
ui/ed  [tower  of  a  government  thus  to  deal  with  its  own  cili 
/en  by  a  decree  which  would  be  operative  within  its  own 
borders,  irrespective  of  any  extraterritorial  efficacy,  it  fol- 
lows that  the  right  of  another  sovereignty  exists,  under  prin- 
ciples of  comity,  to  give  to  a  decree  so  rendered  such 
eflicacv  as  to  that  government  may  seem  to  be  justified  by  its 
conception  of  duty  and  public  policy. 

Fifth.  It  is  no  longer  open  to  question  that  where  husband 
and  wife  are  domiciled  in  a  State  there  exists  jurisdiction  in 
such  State.  (Or  good  cause,  to  enter  a  decree  of  divorce  which 
will  be  entitled  to  enforcement  in  another  State  by  virtue  of 
the  full  faith  and  credit  clause.  It  has,  moreover,  been  de- 
cided that  where  a  lunm  fide  domicil  has  been  acquired  in  a 
State  by  either  of  the  parties  to  a  marriage,  and  a  suit  is 
brought  by  the  domiciled  party  in  such  State  for  a  divorce, 
the  courts  of  that  State,  if  they  acquire  personal  jurisdiction 
also  of  the  other  party,  have  authority  to  enter  a  decree  of 
divorce,  entitled  to  be  enforced^in  every  State  by  the  full 
faith  and  credit  clause.  Cheevcr  v.  Wilson,,  9  Wall.  108. 

Sixth.  .Where  the  domicil  of  matrimony  was  in  a  particular 
Slate,  and  the  husband  abandons  his  wife  and  goes  into  an- 
other State  in  order  to  avoid  his  marital  obligations,  stfth 
other  State  to  which  the  husband  has  wrongfully  fled  doe.s 
not.  in  the  nature  of  things  become  a  new  domicil  of  matri 

521 


APPENDIX 

mony,  and,  therefore,  is  not  to  be  treated  as  the  actual  or 
constructive  domicil  of  the  wife;  hence,  the  place  where  the 
wife  was  domiciled  when  so  abandoned  constitutes  her  legal 
domicil  until  a  new  actual  domicil  be  by  her  elsewhere  ac- 
quired. This  was  clearly  expressed  in  Barber  v.  Barber,  21 
How,  582,  where  it  was  said  (p.  595)  : 

"The  general  rule  is,  that  a  voluntary  separation  will  not 
give  to  the  wife  a  different  domiciliation  in  law  from  that  of 
her  husband.  But  if  the  husband,  'as  is  the  fact  in  this  case, 
abandons  their  domicil  and  his  wife,  to  get  rid  of  all  those 
conjugal  obligations  which  the  marriage  relation  imposes  up- 
on him,  neither  giving  to  her  the  necessaries  nor  the  comforts 
suitable  to  their  condition  and  his  fortune,  and  relinquishes 
altogether  his  marital  control  and  protection,  he  yields  up  that 
power  and  authority  over  her  which  alone  makes  his  domicil 
hers.  ..." 

And  the  same  doctrine  was  expressly  upheld  in  Cheever  v. 
Wilson,  supra,  where  the  court  said  (9  Wall.  123)  : 

''It  is  insisted  that  Cheever  never  resided  in  Indiana;  that 
the  domicil  of  the  husband  is  the  wife's,  and  that  she  cannot 
have  a  different  one  from  his.  The  converse  of  the  latter 
proposition  is  so  well  settled  that  it  would  be  idle  to  discuss 
it.  The  rule  is  that  she  may  acquire  a  separate  domicil  when- 
ever it  is  necessary  or  proper  that  she  should  do  so.  The  right 
springs  from  the  necessity  of  its  exercise,  and  endures  as  long 
as  the  necessity  continues." 

Seventh.  So  also  it  is  settled  that  where  the  domicil  of  a 
husband  is  in  a  particular  State,  and  that  State  is  also  the 
domicil  of  matrimony,  the  courts  of  such  State  having 
jurisdiction  over  the  husband  may,  in  virtue  of  the  duty 
of  the  wife  to  be  at  the  matrimonial  domicil,  disregard  an 
unjustifiable  absence  therefrom,  and  treat  the  wife  as  hav- 
ing her  /domicil  in  the  State  of  the  matrimonial  domicil  for 
the  purpose  of  the  dissolution  of  the  marriage,  and  as  a 
result  have  power  to  render  a  judgment  dissolving  the  mar- 
riage which  will 'be  binding  upon  both  parties,  and  will  be 
entitled  to  recognition  in  all  other  States  by  virtue  of  the 
full  faith  and  credit  clause.  Atherton  v.  Atherton,  181  U.  S. 

!.->:,. 

Doming  to  apply  these  settled  propositions  to  the  case  before 
us  three  things  are  beyond  dispute:  «.  In  view  of  the  au- 
thority which  government  possesses  over  the  marriage  rela- 

522 


II  \PIM.CK     V.    HADDOt  K 

i.  mi  ipiestinn  can  arise  on  tins  record  concerning  the  right 
of  the  State  of  Connecticut  within  its  borders  to  give  effect  in 
i In-  decree  of  divorce  rendered  in  favor  of  the  husband  by  the 
courts  of  Connecticut,  he  being  at  the  time  when  the  decree 

v\a-  rendered  domiciled  in  tliilt  State.  //.  As  Ne\\  York  \v;i- 
the  doniicil  of  the  wife  ;in«l  tin-  doinicil  of  ni;it  rinmny.  from 
which  the  husband  fled  in  disregard  of  his  duty,  it  clearly  re- 
fills from  tin-  sixth  proposition  ih;it  the  doinicil  of  the  wife 
continued  in  New  York.  >-.  As  then  there  c;in  lie  no  question 
that  the  .wife  was  not  constructively  present  in  Connecticut 
liy  virnie  nf  .1  matrimonial  doinicil  in  that  State,  and  was  not 
there  individually  domiciled  and  did  not  appear  in  the  divorce 
cause,  and  was  only  constructively  served  with  notice  of  the 
pendency  of  that  action,  it  is  apparent  that  the  Connecticut 
court  did  not  acquire  jurisdiction  over  the  wife  within  the 
lil'tli  and  seventh  propositions;  that  is.  did  not  acquire  such 
jurisdiction  by  virtue  of  the  doinicil  of  the  wife  within  the 
State  or  as  the  result  of  personal  service  upon  her  within  its 

borders. 

These  subjects  I.ein-  thus  eliminated,  the  case  reduces  itself 
in  this:  Whether  the  Connecticut  court,  in  virtue  alone  of  the 
domicil  of  the  husband  in  that  State,  had  jurisdiction  to  ren- 
der a  decree  against  the  wife  under  the  circumstances  stated, 
which  was  entitled  to  be  enforced  in  other  States  in  and  by 
virtue  of  the  full  faith  and  credit  clause  of  the  Constitution. 
In  other  words,  the  final  question,  is  whether  to  enforce  in 
another  jurisdiction  the  Connecticut  decree  would  not  be  to 
enforce  in  one  State,  a  personal  judgment  rendered  in  another 
State  against  a  defendant  over  whom  the  court  of  the  State 
rendering  the  judgment  had  not  acquired  jurisdiction.  Other- 
wise stated,  the  question  is  this:  Is  a  proceeding  for  divorce 
of  such  an  exceptional  character  as  not  to  come  within  the 
rule,  limiting  the  authority  of  a  State  to  persons  within  its 
jurisdiction,  but  on  the  contrary,  because  of  the  power  which 
i:i>\ernment  may  exercise  over  the  marriage  relation,  con- 
stitutes an  exception  to  that  rule,  and  is  therefore  embraced 
either  within  the  letter  or  spirit  of  the  doctrines  stated  in  the 
third  and  fourth  proposition-'.' 

Before  reviewing  the  authorities  relied  on  to  establish  that 
a  divorce-  proceeding  is  of  the  exceptional  nature  indicated. 
\\  e  propose  tirst  to  consider  the  reasons  advanced  to  sustain 
the  contention.  In  doinj:  so,  however,  it  must  always  be 

523 


APPENDIX 

borne  in  mind  that  it  is  elementary  that  where  the  full  faith 
and  credit  clause  of  the  Constitution  is  invoked  to  compel  the 
enforcement  in  one  State  of  a  decree  rendered  in  another,  the- 
question  of  the  jurisdiction  of  the  court  by  which  the  decree 
was  rendered  is  open  to  inquiry.  And  if  there  was  no  juris- 
diction, either  of  the  subject  matter  or  of  the  person  of  the 
defendant,  the  courts  of  another  State  are  not  required,  by 
virtue  of  the  full  faith  and  credit  clause  of  the  Constitution, 
to  enforce  such  decree.  National  Exchange  Bank  v.  ~^iley} 
H)5  U.'S.  257,  269,  and  cases  cited. 

I.     The  wide  scope  of    the    authority    which    government 
possesses  over  the  contract  of  marriage  and  its  dissolution 
is  the  basis  upon  which  it  is  argued  that  the,domicil  within 
one  State  of  one  party  to  the  marriage  gives  to  such  a  State 
jurisdiction  to  decree  a  dissolution  of  the  marriage  tie  which 
will  be  obligatory  in  all  the  other  States  by  force  of  the  full 
faith  and  credit  clause  of  the  Constitution.     But  the  deduc- 
tion is  destructive  of  the  premise  upon  which  it  rests.     This 
becomes  clear  when  it  is  perceived  that  if  one  government, 
because  of  its  authority  over  its  own  citizens  has  the  right  to 
dissolve  the  marriage  tie  as  to  the  citizen  of  another  jurisdic- 
tion, it  must  follow  that  no  government  possesses  as  to  its 
own  citizens,  power  over  the  marriage  relation  and  its  dissolu- 
tion.   For  if  it  be  that  one  government  in  virtue  of  its  author- 
ity over  marriage  may  dissolve  the  tie  as  to  citizens  of  an- 
other government,  other  governments   would  have  a  similar 
power,  and  hence  the  right  of  every  government  as  to  its  own 
citizens  might  be  rendered  nugatory  by  the  exercise  of  the  pow- 
er which  every  other  government  possessed.    To  concretely  il- 
lustrate :   If  the  fact  be  that  where  persons  are  married  in  the 
State  of  New  York  either  of  the  parties  to  the  marriage  may, 
in  violation  of  the  marital  obligations,  desert  the  other  and  go 
into  the  State  of  Connecticut,  there  acquiring  a  domicil,  and 
procure  a  dissolution  of  the  marriage  which  would  be  binding 
iii  the  State  of  New  York  as  to  the  party  to  the  marriage  there 
domiciled,  it  would  follow  that  the  power  of  the  State  of  New- 
York  as  to  the  dissolution  of  the  marriage  as  to  its  domiciled 
citizen  would  be  of  no  practical  avail.    And  conversely  the  like 
result  would  follow  if  the  marriage  had  been  celebrated  in 
Connecticut  and  desertion  had  been  from  that  State  to  New 
York,  and  consequently  the  decree  of  divorce  had  been  ren- 
dered in  New 'York.     Even  a  superficial  analysis  will  make 

524 


IIA1MMM   K     V.     HADDOCK 

iliis  clear.  Under  the  rule  contended  for  ii  would  follow  that 
the  States  whose  laws  were  the  most  lax  as  to  length  of  resi- 
dence required  for  domicil.  as  to  causes  for  divorce  and  of 
speed  of  procedure  concerning  divorce,  would  in  effect  domi- 
nate all  the  other  States.  In  other  words,  any  person  who  wa- 
married  in  one  State  and  who  wished  to  violate  the  marital 
obligations  would  be  able,  by  following  the  lines  of  least  re- 
sistence.  to  go  into  the  State  whose  laws  were  the  most  lax. 
and  there  avail  of  them  for  the  purpose  of  the  severance  of  the 
marriage  tie  and  the  destruction  of  the  rights  of  the  other 
party  to  the  marriage  contract,  to  the  overthrow  of  the  laws 
and. public  policy  of  the  other  States.  Thus  the  argument 
comes  necessarily  to  this,  that  to  preserve  the  lawful  author- 
ity of  all  the  States  over  marriage  it  is  essential  to  decide  that 
all  the  States  have  such  authority  only  at  the  sufferance  of 
the  other  States.  And  the  considerations  just  stated  serve 
to  dispose  of  the  argument  that  the  contention  relied  on  finds 
support  in  the  ruling  made  in  Maynard  v.  Hill,  referred  to  in 
the  fourth  proposition,  which  was  at  the  outset  stated.  For 
in  that  case  the  sole  question  was  the  effect  within  the  Terri- 
tory of  Washington  of  a  legislative  divorce  granted  in  the 
Territory  to  a  citizen  thereof.  The  upholding  of  the  divorce 
within  the  Territory  was,  therefore,  but  a  recognition  of  the 
power  of  the  territorial  government,  in  virtue  of  its  authority 
over  marriage,  to  deal  with  a  person  domiciled  within  its 
jurisdiction.  The  case,  therefore,  did  not  concern  the  extra- 
territorial efficacy  of  the  legislative  divorce.  In  other  words, 
whilst  the  ruling  recognized  the  ample  powers  which  govern- 
ment possesses  over  marriage  as  to  one  within  its  jurisdiction, 
it  did  not  purport  to  hold  that  such  ample  powers  might  be 
exercised  and  enforced  by  virtue  of  the  Constitution  of  the 
United  States  in  another  jurisdiction  as  to  citizens  of  other 
States  10  whom  the  jurisdiction  of  the  Territory  did  not  ex- 
tend. 

The  anomalous  result  which  it  is  therefore  apparent  would 
arise  from  maintaining  the  proposition  contended  for  is  made 
more  manifest  by  considering  the  instrument  from  which  such 
result  would  be  produced,  that  is,  the  full  faith  and  credit 
clause  of  the  Constitution.  No  one  denies  that  the  States,  at 
the  time  of  the  adaption  of  the  Constitution,  possessed  full 
power  over  the  subject  of  marriage  and  divorce.  No  one, 
moreover,  can  deny  that,  prior  to  the  adoption  of  the  Con- 

525 


APPENDIX 

stitution,  the  extent  to  which  the  States  would  recognize  a 
divorce  obtained  in  a  foreign  jurisdiction  depended  upon  their 
conceptions  of  duty  and  comity.  Besides,  it  must  be  conceded 
that  the  Constitution  delegated  no  authority  to  the  Govern- 
ment of  the  United  States  on  the  subject  of  marriage  and 
divorce.  Yet,  if  the  proposition  be  maintained,  it  would  fol- 
low that  the  destruction  of  the  power  of  the  States  over  the 
dissolution  of  marriage,  as  to  their  own  citizens,  would  be 
brought  about  by  the  operation  of  the  full  faith  and  credit 
clause  of  the  Constitution.  That  is  to  say,  it  would  come  to 
pass  that,  although  the  Constitution  of  the  United  States  does 
not  interfere  with  the  authority  of  the  States  over  marriage, 
nevertheless  the  full  faith  and  credit  clause  of  that  instru- 
ment destroyed  the  authority  of  the  States  over  the  marriage 
relation.  And  as  the  Government  of  the  United  States  has  no 
delegated  authority  on  the  subject,  that  Government  would 
be  powerless  to  prevent  the  evil  thus  brought  about  by  the 
full  faith  and  credit  clause.  Thus  neither  the  States  nor  the 
National  Government  would  be  able  to  exert  that  authority 
over  the  marriage  tie  possessed  by  every  other  civilized  gov- 
ernment. Yet  more  remarkable  would  be  such  result  when 
it  is  borne  in  mind  that,  when  the  Constitution  was  adopted, 
nowhere,  either  in  the  mother  country  or  on  the  continent  of 
Europe,  either  in  adjudged  cases  or  in  the  treatises  of  au- 
thoratative  writers,  had  the  theory  ever  been  upheld  or  been 
taught  or  even  suggested  that  one  government,  solely  because 
of  the  domicil  within  its  borders  of  one  of  the  parties  to  a  mar- 
riage, had  authority,  without  the  actual  or  constructive  pres- 
ence of  the  other,  to  exert  its  authority  by  a  dissolution  of  the 
marriage  tie,  which  exertion  of  power  it  would  be  the  duty 
of  other  States  to  respect  as  to  those  subject  to  their  jurisdic- 
tion. 

II.  It  is  urged  that  the  suit  for  divorce  was  a  proceeding 
in  rem,  and,  therefore,  the  Connecticut  court  had  complete 
jurisdiction  to  enter  a  decree  as  to  the  res,  entitled  to  be 
enforced  in  the  State  of  New  York.  But  here  again  the  argu- 
ment is  contradictory.  It  rests  upon  the  theory  that  juris- 
diction in  Connecticut  depended  upon  the  domicil  of  the 
person  there  suing  and  yet  attributes  to  the  decree  resting 
upon  the  domicil  of  one  of  the  parties  alone  a  force  and  effect 
based  upon  the  theory  that  a  thing  within  the  jurisdiction  of 
Connecticut  was  the  subject  matter  of  the  controversy.  But 

526 


HADDOCK    V.    HADDOCK 

putting  this  contradiction  aside,  what,  may  we  ask,  was  the 
res  in  Connecticut?  <  Vrtninly  ii  cannot  in  reason  be  said  that 
it  was  the  cause  of  action  or  the  mere  presence  of  the  person 
of  the  plaintiff  within  the  jurisdiction.  The  only  possible 
theory  thpu  upon  which  the  proposition  proceeds  must  be 
that  the  res  in  Connecticut,  from  which  the  jurisdiction  is 
assumed  to  have  arisen,  was  the  marriage  relation.  But  as 
the  marriage  was  celebrated  in  New  York  between  citizens 
of  that  State,  it  must  be  admitted,  undej:  the  hypothesis 
stated,  that  before  the  husband  deserted  the  wife  in  New 
York,  the  res  was  in  New  York  and  not  in  Connecticut.  A's 
the  husband,  after  wrongfully  abandoning  the  wife  in  New 
York,  never  established  a  matrimonial  domicil  in  Connecticut, 
it  cannot  be  said  that  he  took  with  him  the  iiuiiial  relation 
from  which  he  fled  to  Connecticut.  Conceding,  however,  that 
lie  took  with  him  to  Connecticut  so  much  of  the  marital  rela- 
tion as  concerned  his  individual  status,  it  cannot  in  reason 
be  said  that  he  did  not  leave  in  New  York  so  much  of  the 
relation  as  pertained  to  the  status  of  the  wife.  From  any 
point  of  view,  then,  under  the  proposition  referred  to, '  if  the 
marriage  relation  be  treated  as  the  res,  it  follows  that  it  was 
divisible,  and  therefore  there  was  a  res  in  the  State  of  New 
York  and  one  in  the  State  of  Connecticut.  Thus  considered, 
it  is  clear  that  the  power  of  one  State  did  not  extend  to  affect- 
ing the  thing  situated  in  another  State.  As  illustrating  this 
conception,  we  notice  the  case  of  Mississippi  &  Missouri  R. 
R.  Co.  v.  Ward,  2  Black,  485.  The  facts  in  that  case  were 
these :  A  bill  was  filed  in  a  District  Court  of  the  United  States 
for  the  District  of  Iowa  to  abate  a  nuisance  alleged  to  have 
been  occasioned  by  a  bridge  across  the  Mississippi  river 
dividing  the  States  of  Illinois  and  Iowa.  Under  the  assump- 
tion that  the  nuisance  was  occasioned  by  the  operation  of  the 
bridge  on  the  Illinois  side,  the  court,  after  pointing  out  that 
the  United  States  Circuit  Court  for  the  District  of  Iowa  exer- 
cised the  same  jurisdiction  that  a  state  court  of  Iowa  could 
exercise  and  no  more,  said  (p.  494)  : 

"The  District  Court  had  no  power  over  the  local  object 
inflicting  the  injury;  nor  any  jurisdiction  to  inquire  of  the 
facts,  whether  damage  had  been  sustained,  or  how  much. 
These  facts  are  beyond  the  court's  jurisdiction  and  pow»M-> 
of  inquiry,  and  outside  of  the  case." 

Nor  has  the  conclusive  force  of  the  view  which  we  h;m 

527 


APPENDIX 

stated  been  met  by  the  suggestion  that  the  res  was  indivisible, 
and  therefore  was  wholly  in  Connecticut  and  wholly  in  New 
York,  for  this  amounts  but  to  saying  that  the  same  thing  can 
be  at  one  and  the  same  time  in  different  places.  Further,  the 
reasoning  above  expressed  disposes  of  the  contentign  that,  as 
the  suit  in  Connecticut  involved  the  status  of  the  husband, 
therefore  the  courts  of  tha,t  State  had  the  power  to  deter- 
mine the  status  of  the  non-resident  wife  by  a  decree  which 
had  obligatory  force  outside  of  the  State  of  Connecticut. 
Here,  again,  the  argument  comes  to  this,  that,  because  the 
State  of  Connecticut  had  jurisdiction  to  fix  the  status  of  one 
domiciled  Avithin  its  borders,  that  State  also  had  the  authority 
to  oust  the  State  of  New  York  of  the  power  to  fix  the  status 
of  a  person  who  was  undeniably  subject  to  the  jurisdiction 
of  that  £tate. 

III.  It  is  urged  that  whilst  marriage  is  in  one  aspect  a  con- 
tract, it  is  nevertheless  a  contract  in  which  society  is  deeply 
interested  and,  therefore,  government  must  have  the  power 
to  determine  Avhether  a  marriage  exists  or  to  dissolve  it,  and 
hence*  the  Connecticut  court  had  jurisdiction  of  the  relation 
and  the  right  to  dissolve  it,  not  only  as  to  its  own -citizen  but 
as  to  a  citizen  of  New  York  who  was  not  subject  to  the  juris- 
diction of  the  State  of  Connecticut.  The  proposition  involves 
in  another  form  of  statement  the  non  sequitur  which  we  have 
previously  pointed  out;  that  is,  that,  because  government 
possesses  power  over  marriage,  therefore  the  existence  of  that 
I  tower  must  be  rendered  unavailing. 

Nor  is  the  contention  aided  by  the  proposition  that  because 
it  is  impossible  to  conceive  of  the  dissolution  of  the  marriage 
as  to  one  of  the  parties  in  one  jurisdiction  without  at  the  same 
time  saying  that  the/  marriage  is  dissolved  as  to  both  in  every 
other  jurisdiction,  therefore  the  Connecticut  decree  should 
have  obligatory  effect  in  New  York  as  to  the  citizen  of  that 
State.  For,  again,  by  a  change  of  form  of  statement,  the 
same  contention  which  we  have 'disposed  of  is  reiterated.  Be- 
sides, the  proposition  presupposes  that,  because  in  the  exer- 
cise of  its  power  over  its  own  citizens,  a  State  may  determine 
to  dissolve  the  marriage  tie  by  a  decree  which  is  efficacious 
within  its  borders,  therefore  such  decree  is  in  all  cases  bind- 
ing in  every  other  jurisdiction.  As  we  have  pointed  out  at 
the  outset,  it  does  not  follow  that  a  State  may  not  exert  its 
power  as  to  one  within  its  jurisdiction  simply  because  such 

528 


H.MH.orK     V.     1IA1UHM    K 

exercise  of  authority  m;iy  nut  be  extended  beyond  its  border- 
inin  the  jurisdiction  and  authority  of  another  State.  The 
distinction  was  dearly  pointed  out  in  Bla<.-kintt,n  \.  Hludciii- 
ton,  141  Massachusetts,  432.  In  that  case  the  parties  wen 
married  and  li\ed  in  Massachusetts.  The  husband  abandoned 
the  wilV  without  cause  and  became  domiciled  in  New  York. 
The  wife  remained  at  the  matrimonial  domicil  in  .Ma-»a 
chusetts  and  instituted  a  proceeding  to  prohibit  her  husband 
from  imposing  any  restraint  upon'her  personal  liberty  and  for 
separate  maintenance.  Service  was  made  upon  the  husband  in 
New  York.  The  court,  recognizing  fully  that  under  the  circum- 
-tances  disclosed  the  domicil  of  the  husband  was  not  the  domi- 
cil of  the  wife,  concluded  that,  under  the  statutes  of  Ma>-:i 
chusetts,  it  had  authority  to  grant  the  relief  prayed,  and  was 
then  brought  to  determine  whether  the  decree  ought  to  be 
made,  iu  view  of 'the  fact  that  such  decree  might  not  have  ex- 
traterritorial force.  But  this  circumstance  was  held  not  to 
be  controlling  and  the  decree  was  awarded.  The  same  doc- 
trine was  dearly  expounded  by  the  Privy  Council,  in  an  opin- 
ion delivered  by  Lord  Watson,  in  the  divorve  case  of  Le 
Mesurier  v.  Le  Mesurier  (1895),  A.  C.  517,  where  it  was  said 
'  (p.  527) : 

"When  the  jurisdiction  of  the  court  is  exercised  according 
to  the  rules  of  international  law,  as  in  the  case  where  the 
parties  have  their  domicil  within  its  forum,  its  decree  dis 
solving  their  marriage  ought  to  be  respected  by  the  tribunals 
of  every  civilized  country.  .  .  .  On  the  other  hand,  a  decree 
of  divorce  a  vinculo,  pronounced  by  p  court  whose  jurisdic- 
tion is  solely  derived  from  some  rule  of  municipal  law 
peculiar  to  its  forum,  cannot,  when  it  trenches  upon  the  inter- 
ests of  any  other  country  to  whose  tribunals  the  spouses  were 
amenable,  claim  extraterritorial  authority." 

IV.  The  contention  that  if  th  epower  of  one  State  to  decree 
a  dissolution  of  a  marriage  which  would  be  compulsory  upon 
the  other  States  be  limited  to  cases  where  both  parties  are 
subject  to  the  jurisdiction,  the  right  to  obtain  a  divorce  could 
be  so  hampered  and  restricted  as  to  be  in  effect  impossible 
of  exercise,  is  but  to  insist  that  in  order  to  favor  the  dissolu- 
tion of  marriage  and  to  cause  its  permanency  to  depend 
upon  the  mere  caprice  or  wrong  of  the  parties,  there  should 
not  be  applied  to  the  right  to  obtain  a  divorce  those  funda- 
mental principles  which  safeguard  the  exercise  of  the  simplest 

529 


APPENDIX 

rights.  Iii  other  words,  the  argument  but  reproduces  the 
fallacy  already  exposed,  which  is,  that  one  State  must  be  en- 
dowed with  the  attribute  of  destroying  the  authority  of  all 
the  others  concerning  the  dissolution  of  marriage  in  order  to 
render  such  dissolution  easy  of  procurement.  But  even  if  the 
true  and  controlling  principles  be  for  a  moment  put  aside  and 
mere  considerations  of  inconvenience  be  looked  at,  it  would 
follow  that  the  preponderance  of  inconvenience  would  be 
against  the  contention  that  a  State  should  have  the  power  to 
exert  its  authority  concerning  the  dissolution  of  marriage  as 
to  those  not  amenable  to  its  jurisdiction.  By  the  application 
of  that  rule  each  State  is  given  the  power  of  overshadowing 
the  authority  of  all  the  other  States,  thus  causing  the  mar- 
riage tie  to  be  less  protected  than  any  other  civil  obligation, 
and  this  to  be  accomplished  by  destroying  individual  rights 
without  a  hearing  and  by  tribunals  having  no  jurisdiction. 
Further,  the  admission  that  jurisdiction  in  the  courts  of  one 
State  over  one  party  alone  was  the  test  of  the  right  to  dis- 
solve the  marriage  tie  as  to  the  other  party  although  domiciled 
in  another  State,  would  at  once  render  such  test  impossible 
of  general  application.  In  other  words,  the  test,  if  admitted, 
would  destroy  itself.  This  follows,  since  if  that  test  were  the 
rule,  each  party  to  the  marriage  in  one  State  would  have  a 
right  to  acquire  a  domicil  in  a  different  State  and  there  in- 
stitute proceedings  for  divorce.  It  would  hence  necessarily 
arise  that  domicil  would  be  no  longer  the  determinative  cri- 
terion, but  the  mere  race  of  diligence  between  the  parties  in 
seeking  different  forums  in  other  States  or  the  celerity  by 
which  in  such  States  judgments  of  divorce  might  be  procured 
would  have  to  be  considered  in  order  to  decide  which  forum 
was  controlling. 

On  the  other  hand,  the  denial  of  the  power  to  enforce  in 
another  State  a  decree  of  divorce  rendered  against  a  person 
who  was  not  subject  to  the  jurisdiction  of  the  State  in  which 
the  decree  was  rendered  obviates  all  the  contradictions  and 
inconveniences  which  are  above  indicated.  It  leaves  uncur- 
tailed  the  legitimate  power  of  all  the  States  over  a  subject 
peculiarly  within  their  authority,  and  thus  not  only  enables 
them  to  maintain  their  public  policy  but  also  to  protect  the 
individual  rights  of  their  citizens.  It  does  not  deprive  a  State 
of  the  power  to  render  a  decree  of  divorce  susceptible  of  being 
enforced  within  its  borders  as  to  the  person  within  the  juris- 

530 


HAIUKM'K     V.     HAMHM'K 

diction  ami  <ln»-v  not  debar  other  Stairs  from  giving  sin -li 
effect  to  a  judgment  of  that  character  as  they  may  elect  to  do 
under  mere  principles  of  state  comity.  It  causes  the  full 
faith  and  rn-dii  rlaiisr  of  ilic  Constitution  to  operate  upon 
decrees  of  divorce  in  the  respective  States  just  as  that  clans.- 
operates  upon  other  rights,  that  is.  it  compels  all  the  States 
to  recognize  and  enforce  a  judgment  of  divorce  rendered  in 
other  Stait-<  whn-r  both  parties  were  subject  to  the  jurisdic- 
tion of  the  State  in  which  the  decree  was  rendered,  and  ir 
enables  the  States  rendering  such  decrees  to  take  into  view 
for  the  purpose  of  the  exercise  of  their  authority  the  existence 
of  a  matrimonial  domicil  from  which  the  presence  of  a  party 
not  physically  present  within  the  borders  of  a  State  may  be 
constructively  found  to  exist. 

Having  thus  disposed  of  the  reasoning  advanced  to  sustain 
the  assertion  that  the  courts  of  the  State  of  New  York  were 
bound  by  the  full  faith  and  credit  clause  to  give  full  effect  to 
the  Connecticut  decree,  we  are  brought  to  consider  the  au- 
thorities  relied  upon  to  support  that  proposition. 

Whilst  the  continental  and  English  authorities  are  not 
alluded  to  in  the  argument,  it  may  be  well,  in  the  most  sum- 
mary way,  to  refer  to  them  as  a  means  of  illustrating  the 
question  for  consideration.  The  extent  of  the  power  which 
independent  sovereignties  exercised  over  the  dissolution  of  the 
marriage  tie,  as  to  their  own  citizens,  gave  .rise,  in  the  nature 
of  tilings,  to  controversies  concerning  the  extraterritorial 
effect  to  be  given  *o  a  dissolution  of  such  tie  when  made  be- 
tween citizens  of  one  country  by  judicial  tribunals  of  another 
country  in  which  such  citizens  had  become  domiciled.  We  do 
not  deem  it  essential,  however,  to  consider  the  conflicting 
theories  and  divergent  rules  of  public  policy  which  were  thus 
engendered.  We  are  relieved, of  the  necessity  of  entering  upon 
such  an  inquiry,  since  it  cannot  be  doubted  that  neither  the 
practice  nor  the  theories  controlling  in  the  countries  on  the 
continent  lend  the  slightest  sanction  to  the  contention  that  a 
government,  simply  because  one  of  the  parties  to  a  marriage 
was  domiciled  within  its  borders,  where  no  matrimonial  domi- 
cil ever  existed,  had  power  to  render  a  decree  dissolving  a 
marriage  which  on  principles  of  international  law  was  entitled 
to  obligatory  extraterritorial  effect  as  to  the  other  party  to 
the  inaiTia.up.  a  citizen  of  another  country.  Wharton,  Conf. 
Laws.  :',o!  <•<!..  v.  1,  p.  441.  sec.  209  and  noi<- 

531 


APPENDIX 

It  caunot  be  doubted,  also,  that  the  courts  of  England  de- 
cline to  treat  a  foreign  decree  of  divorce  as  having  obligatory- 
extraterritorial  force  when  both  parties  to  the  marriage  were 
not  subject  to  the  jurisdiction  of  the  court  which  rendered  the 
decree.  Shaw  v.  Gould,  L.  R.  3  H.  L.  55;  Harvey  \.  Farnie, 
8  App.  Cas.  43.  And,  although  it  has  been  suggested  in  opin- 
ions of  English  judges  treating  of  divorce  questions  that  ex- 
ceptional cases  might  arise  which  perhaps  would  justify  a 
relaxation  of  the  rigor  of  the  presumption  that  the  domicil  of  % 
the  husband  was  the  domicil  of  the  wife,  per  Lords  Eldon  and 
Redesdale,  in  Tovey  \.  Lindsay,  1  Dow,  133,  140;  per  Lord 
Westbury,  in  Pitt  v.  Pitt,  4  Macq.  627,  640;  per  Brett,  L.  J. 
in  Niboyet  v.  Niboyet,  4  P.  D.  1,  14 ;  Briggs  v.  Briggs,  5  P.  D. 
163,  165;  and  per  James  and  Cotton,  L.  JJ.,  in  Harvey  v. 
Farnie,  6  P.  D.  47,  49,  the  courts  England,  in  cases  where 
the  jurisdiction  was  dependent  upon  domicil,  have  enforced 
the  presumption  and  treated  the  wife  as  being  within  the  juris- 
f  diction  where  the  husband  was  legally  domiciled.  But  this 
conception  was  not  a  departure  from  the  principle  uniformly 
maintained,  that,  internationally  considered,  jurisdiction  over 
both  parties  to,  a  marriage  was  essential  to  the  exercise  of 
power  to  decree  a  divorce,  but  was  simply  a  means  of  deter- 
mining by  a  legal  presumption  whether  both  parties  were 
within  the  jurisdiction.  Of  course  the  rigor  of  the  English 
rule  as  to  the  domicil  of  the  husband  being  the  domicil  of  the 
wife  is  not  controlling  in  this  court,  in  view  of  the  decisons  to 
which  we  have  previously  referred,  recognizing  the  right  of  the 
wife,  for  the  fault  of  the  husband,  to  acquire  a  separate  domi- 
cil. Barber  v.  Barber,  21  How.  582;  Cheever  v.  Wilson,  9 
Wall.  108;  Atherton  v.  Atherton,  181  TJ.  S.  155. 

And  even  in  Scotland,  where  residence,  as  distinguished 
from  domicil,  was  deemed  to  authorize  the  exercise  of  juris- 
diction to  grant  divorces,  jt  was  invariably  recognized  that  the 
presence  within  the  jurisdiction  of  both  parties  to  the  mar- 
riage was  essential  to  authorize  a  decree  in  favor  of  the  com- 
plainant. Wharton,  Confl.  Laws,  sec.  215,  v.  1,  p.  447;  per 
Lord  Westbury,  in  Shaw  v.  Gould,  L.  R,  3  H.  L.  88. 

As  respects  the  decisions  of  this  court.  We  at  once  treat 
as  inapposite,  and  therefore  unnecessary  to  be  here  specially 
reviewed,  -those  holding,  a,  that  where  the  domicil  of  a  plain- 
tiff in  a  divorce  cause  is  in  the  State  where  the  suit  was 
brought,  and  the  defendant  appears  and  defends,  as  both 

5S2 


IIAIMMM'K      V.     IIAlilioi'K 

|. iiriics  are  before  the  court,  there  is  power  lo  render  ;i  decree 
of  divorce  which  will  lie  entitled  in  other  State*  to  recognition 
under  the  lull  faith  iind  credit  clause  i  Cltrrrrr  v.  ll'//.so?5, 
xn/ir<n  ;  It,  llmi  as  distinguished  1'roiii  legal  domicil.  mere  ivsi 
deuce  within  a  particular  State  of  the  plaintiff  in  a  divorce 
cause  brought  in  :i  court  of  such  State  is  not  suni<-ient  to 
conler  jurisdiction  upon  such  court  to  dissolve  the  marriage 
relation  existing  bet  ween  the  plaintiff  and  a  non-resident  de- 
fendant. .Imln'ir*  \.  An-dretos,  188  T:.  S.  II;  xtrritwolf  v. 
Streitwolf,  isi  r.  S.  1T!>;  Hell  v.  Bell,  181  U.  8.  175.  This 
brings  us  to  again  considei-  a  case  heretofore  referred  to. 
principally  'relied  upon  as  sustaining  the  contention  that  the 
doinicil  of  one  party  alone  is  sufficient  to  confer  jurisdiction 
upon  a  judicial  tribunal  to  render  a  decree  of  divorce  having 
extra  territorial  effect,  vi/...  Athrrtnn,  v.  Atherton,  181  U.  S. 
!•">.  The  decision  in  that  c;ise.  howe\er,  as  we  have  previous! v 
.said,  was  expressly  placed  upon  the  ground  of  matrimonial 
doinicil.  This  is  apparent'  from  the  following  passage,  which 
we  excerpt  from  the  opinion,  at  page  171: 

••This  case  does  not  involve  the  validity  of  a  divorce  granted, 
on  constructive  service,  by  the  court  of  a  State  in  which  only 
one  of  the  parties  ever  had  a  domicil ;  nor  the  question  to  what 
extent  the  good  faith  of  the  domicil  may  be  afterwards  in 
i|uired  into.  In  this  case  the  divorce  in  Kentucky  was  by 
the  court  of'the  State  which  had  always  been  the  undoubted 
doinicil  of  the  husband,  and  which  was  the  only  matrimonial 
domicil  of  the  husband  and  wife.  The  single  question  to 
lie  decided  is  the  validity  of  that  divorce,  granted  after  such 
notice  had  been  given  as  was  required  by  the  statutes  of 
Kentucky." 

The  contention,  therefore,  that  the  reasoning  of  the  opinion 
demonstrates  that  the  domicil  of  one  of  the  parties  alone  was 
contemplated  a:s  being  sullicient  to  found  jurisdiction,  but  in- 
sists that  the  case  decided  a  proposition  which  was  excluded 
in  unmistakable  language.  But.  moreover,  it  is  clear,  when 
the  facts  which  \\ere  involved  in  the  Athrrtnn  case  are  taken 
into  view,  that  the  case  could  not  have  been  decided  merely 
Upon  the  ground  of  the  domicil  of  one  of  the  parties,  because 
that  consideration  alone  would  have  afforded  no. solution  of 
the  problem  which  the  c:ise  presented.  The  salient  fact*  were 
these:  The  husband  lived  in  Kentucky,  married  a  citizen  of 
New  York,  and  the  married  couple  took  up  their  domicil  at 

583 


APPENDIX 

the  home  of  the  husband  in  Kentucky,  where  they  continued 
to  reside  and  where  children  were  born  to  them.  The  wife 
left  the  matrimonial  domicil  and  went  to  New  York.  The 
husband  sued  her  in  Kentucky  for  a  divorce.  Before  the 
Kentucky  suit  merged  into  a  decree  the  wife,  having  a  resi- 
dence in  New  York  sufficient,  under  ordinary  circumstances, 
to  constitute  a  domicil  in  that  State,  sued  the  husband  in  the 
courts  of  New  York  for  a  limited  divorce.  Thus  the  two  suits, 
one  by  the  husband  against  the  wife  and  the  other  by  the  wife 
against  the  husband,  were  pending  in  the  respective  States  at 
the  same  time.  The  husband  obtained  a  decree  in  the  Ken- 
tucky suit  before  the  suit  of  the  wife  had  been  determined  and 
pleaded  such  decree  in  the  suit  brought  by  the  wife  in  New1 
York.  The  New  York  court,  however,  refused  to  recognize 
the  Kentucky  decree  and  the  case  came  here,  and  this  court 
decided  that  the  courts  of  New  York  were  bound  to  give  effect 
to  the  Kentucky  decree  by  virtue  of  the  full  faith  and  credit 
clause.  Under  these  conditions  it  is  clear  that  the  case  could 
not  have  been  disposed  of  on  the  mere  ground  of  thje  individ- 
ual domicil  of  the  parties,  since  upon  that  hypothesis,  even 
if  the  efficacy  of  the  individual  domicil  had  been  admitted,  no 
solution  would  have  been  thereby  afforded  of  the  problem 
which  would  have  arisen  for  decision,  that  problem  being 
which  of  the  two  courts  wherein  the  conflicting  proceedings 
were  pending  had  the  paramount  right  to  enter  a  binding 
decree.  Having  disposed  of  the  case  upon  the  principle  of 
matrimonial  domicil,  it  cannot  in  reason  be  conceived  that 
the  court  intended  to  express  an  opinion  upon  the  soundness 
of  the  theory  of  individual  and  separate  domicil  which,  iso- 
latedly  considered,  was  inadequate  to  dispose  of,  and  was, 
therefore,  irrelevant  to,  the  question  for  decision. 

It  is  contended  that  an  overwhelming  preponderance  of  the 
decisions  of  state  courts  enforce  the  doctrine  that  it  is  the 
duty  of  the  States,  by  virtue  of  the  full  faith  and  credit  clause, 
to  give  within  their  borders  the  full  effect  required  by  that 
clause  to  decrees  of  divorce  rendered  in  other  States,  where 
there  was  jurisdiction  alone  by  virtue  of  the  domicil  of  one  of 
the  parties.  Whilst  we  may  not  avoid  the  duty  of  interpreting 
for  ourselves  the  Constitution  of  the  United  States,  in  view 
of  the  persuasive  force  that  would  result  if  an  overwhelming 
line  of  state  decisions  held  the  asserted  doctrine,  we  come  to 
consider  that  subject.  To  examine  in  detail  the  many  deci- 

534 


1 1. \MHM-K    \.   iiAi»ixVK 

sions  of  state  courts  of  hist  resort,  most  of  which  are  referred 
to  in  tin-  m.-ii-Liiii.  would  expand  tins  opinion  lo  undue  length. 
To  avoid  M.  dojn»;.  1C  possilde,  we  propose  to  more  particularly 
direct  our  attention  to  tin*  cases  in  state  courts  which  are 
specially  relied  on.  In  doing  so  \vc  shall  add  case>  in  several 
of  the  States  not  particularly  counted  on  in  the  argument. 
We  shall  do  this  for  the  purpose  of  evolving,  if  possible,  from 
i lie  Mate  cases  thus  to  be  referred  to,  some  classification 
typical  of  all  the  state  decisions,  hence  enabling  all  the  cases 
to  which  we  do  not  specially  refer  to  be  brought  within  the 
appropriate  class  to  which  they  pertain,  without  the  necessity 
of  reviewing  them  in  detail.  We  shall  not  confine  ourselves 
to  the  particular«state  decisions  relied  on,  but  shall  conside, 
such  decisions  in  the  light  of  the  general  rule  obtaining  in 
the  particular  State. 

The  cases  specially  relied  on  are  Thompson  v,  State,  28  Ala 
Uama.  12;  Hardi)uj  v.    I/'/'//.  !•  .Maine,  140;  Ditson  v.  Ditsoii. 
4   K.   I.  S7;  liurlcn  v.  Shannon.  115  Massachusetts,  438;  and 
FHt  v.  Felt,  59  N.  J.  Eq.  606,  to  which  we  shall  add  for  the 

'Cases  relating  to  the  validity  and  extraterritorial  effect  of  a  decree 
of  divorce  rendered  upon  constructive  notice: 

Turner  v.  Turner,  44  Alabama,  437 ;  In  re  James  Estate,  99  California, 
374;  Knowlton  v.  KnowUon,  155  Illinois,  158;  Dunham  v.  Dunham.  162 
Illinois,  589;  Field  v^  Field,  215  Illinois,  496;  Hood  v.  State,  56  Indiana, 
263,  270;  Hilbish  v.  Hattle,  145  Indiana,  59;  Kline  v.  Kline,  57  Iowa,  386; 
Van  Orsdal  v.  Van  Orsdal,  67  Iowa,  35;  Chapman  v.  Chapman,  48  Kan- 
sas, 636;  Rodgers  v.  Rodgers,  56  Kansas,  483;  Maguire  v.  Maguire,  1 
Dana,  181;  Hawkins  v.  Ragsdale,  80  Kentucky,  353;  Edwards  v.  Green, 
9  La.  Ann.  317 ;  Smith  v.  Smith,  43  La.  Ann.  1140 ;  Butler  v.  Washington, 
45  La.  Ann.  279;  Harding  v.  Alden,  9  Maine,  140;  Stilphen  v.  Stilphen, 
58  Maine,  508 ;  Stilphen  v.  Hondlette,  60  Maine,  447 ;  Garner  v.  Garner, 
56  Maryland,  127;  Lyon  v.  Lyon,  2  Gray,  367;  Wright  v.  Wright  24 
Michigan  180;  Van  Inwagen  v.  Van  Inwagen  86  Michigan,  333;  Thurs- 
ton  v.  Thurston,  58  Minnesota,  279;  Gould  v.  Crow,  57  Missouri,  200; 
Anthony  v.  Rice,  110  Missouri,  223;  Smith  v.  Smith,  19  Nebraska,  706; 
Leith  v.  Leith,  39  N.  H.  20;  Doughty  v.  Doughty,  28  N.  J.  Eq.  581; 
Flower  v.  Flower,  42  N.  J.  Eq.  152;  Felt  v.  Felt,  59  N.  J.  Eq.  606;  Wal- 
lace v.  Wallace,  62  N.  J.  Eq.  509;  Lynde  v.  Lynde,  162  N.  Y.  405;  Win- 
ston v.. Winston,  165  N.  Y.  653;  Irby  v.  Wilson,  1  Dev.  &  Dat.  Eq.  21  N. 
Car.  568;  flarrt*  v.  Harris,  115  N.  Car.  587;  Bidwcll  v.  Bidwell,  139  N. 
Car.  402,  52  S.  E.  Rep.  55,  58;  Cox  v.  Cox,  19  Ohio  St.  502;  Doerr  v.  For- 
si/the,  50  Ohio  St.  726;  Colvin  v.  Reed,  55  Pa.  St  375;  Reel  v.  Elder,  62 
Pa.  St.  308;  Ditson  v.  Ditson,  4  R.  I.  87;  McCreery  v.  Davis,  44  S.  Car. 
195;  Thorns  v.  King,  95  Tennessee,  60;  Prosser  v.  Warner,  47  Vermont, 
667,  673;  Cook  v.  Cook,  56  Wisconsin,  195. 

535 


APPENDIX 

purposes  above  stated  cases  on  the  same  subject  decided  in 
New  York,  Ohio,  Wisconsin,  Indiana  and  Missouri. 

NEW  YORK. — It  is  not  questioned  that  the  courts  of  New 
York  are  vested  by  statute  with  authority  to  render  decrees 
of  divorce  where  the  plaintiff  is  domiciled  within  the  State, 
which  shall  be  operative  in  that  State,  even  although  the  de- 
fendant is  a  non-resident  and  is  proceeded  against  by  con- 
structive service. 

Borden  v.  Fitch,  15  Johns,  121,  and  Bradshaw  v.  Heath,  13 
Wend.  407,  were  decided,  respectively,  in  the  years  1818  and 
1835.  These  cases,  as  declared  by  the  Court  of  Appeals  of 
New  York  in  People  v.  Baker,  76  N.  Y.  78,  82,  upheld  the  prin- 
ciple that  a  court  of  another  State  could  jtot  dissolve  the 
matrimonial  relation  of  a  citizen  of  New  York,  domiciled  in 
New  York,  unless  lie  was  actually  served  with  notice  within 
the  other  State  or  voluntarily  appeared  in  the  cause.  The 
doctrine  that  a'n  action  of  divorce  is  one  inter  paries  was  thus 
clearly  reiterated  by  Andrews,  J.,  in  Jones  v.  Jones,  108  N.  Y. 
415,  424: 

"The  contract  of  marriage  cannot  be  annulled  by  judicial 
sanction  any. more  than  any  other  contract  inter  paries,,  with- 
out jurisdiction  of  the  person  of  the  defendant.  The  marriage 
relation  is  not  a  res  within  the  State  "of  the  party  invoking  the 
jurisdiction  of  a  court  to  dissolve  it,  so  as  to  authorize  the 
court  to  bind  the  absent  party,  a  citizen  of  another  jurisdic- 
tion, by  substituted  service  or  actual  notice  of  the  proceeding 
given  without  the  jurisdiction  of  the  court  where  the  proceed- 
ing is  pending/' 

That  the  principle  referred  to  is  still  enforced  by  the  New 
York  court  is  shown  by  recent  cases,  viz.,  Lynde  v.  Lynde,  162 
N.  Y.  405;  Winston  v.  Winston,  165  N.  Y.  553,  and  the  case 
at  bar.  And  it  is  indubitable  that  under  this,  doctrine  the 
courts  of  New  York  have  invariably  refused,  as  they  have 
done  in  the  case  at  bar,  to  treat  a  divorce  rendered  in  another 
State,  under  the  circumstances  stated,  as  entitled  to  be  en- 
forced in  New  York  by  virtue  of  the  full  faith  and  credit 
clause  of  the  Constitution  of  the  United  States;  and,  indeed, 
have  refused  generally  to  give  effect  to  such  decrees  even  by 
state  comity. 

•MASSACHUSETTS. — Bat-far  v.  Root,  10  Massachusetts  260; 
llannrn-  \.  Turner,  14  Massachusetts,  227,  and  Harteau  v. 
Hai-teau,  14  Pick.  181,  were  decided,  respectively,  in  1813, 

536 


IIAl.lH.CK     V.     IIAIUMM-K 

1S17  and  is:',:!.  In  ls:;.~,  the  legislature  of  Massachusetts  in 
mrpnrated  jinn  the  statutes  of  tliat  Stale,  following  a  section 
forbidding  the  reci. gniiion  of  divorces  obtained  in  another 
jurisdiction  in  fraud  of  the  Jaws  of  Massachusetts.  ;i  provision 
reading  as  follows:  "In  all  other  cases,  a  divorce  decreed  in 
another  State  or  country,  according  to  the  law  of  the  place.  b\ 
a  court  having  jurisdiction  of  the  cause  and  of  hotli  of  the 
parties,  shall  he  valid  and  effectual  in  this  Stale."  And  it 
may  he  ohserved  that  this  section,  when  suhinitted  to  the 
legislature  hy  the  commissioners  for  revising  the  .Massachn 
setts  statutes,  was  acconi]»anie<l  hy  the  following  comment 
(Kept.  Comrs.,  |»t.  II.  p.  I:.':',!:  "This  is  founded  on  the  rule 
established  hy  the  comity  of  all  civilized  nations;  and  is 
proposed  merely  that  no  douht  should  arise  on  a  question  so 
interesting  and  important  as  this  may  sometimes  he." 

In  l.ii'Hi  v.  l.i/tin  flS.~Hi.  L'  r.ray.  :'.r»7.  the  question  was  as 
to  the  validity  in  Massachusetts  of  a  divorce  decreed  in  Uhode 
Island  in  favor  of  one  party  to  a  marriage  against  the  other 
who  was  domiciled  in  .Massachusetts.  The  court  refused  to 
give  extraterritorial  effect  to  the  Uhode  Island  decree.  In 
the  opinion  hy  Chief  Justice  Shaw  it  was  declared  that  the 
three  cases  which  we  have  previously  referred  to  sustained  the 
doctrine,  hased  U]M>H  general  principles  of  law.  that  a  decree 
of  divorce  rendered  in  another  State  without  jurisdiction  of 
both  of  the  parties  possessed  no  extraterritorial  force. 

In  I/iirnl  v.  ffoinl  ilS»;r>i.  11  Allen.  1!M'»,  the  controversy  was 
this:  The  parties  were  married  in  Massachusetts  ami.  after  a 
residence  in  that  State,  moved  together  to  Illinois.  The  wife 
left  the  domicil  of  the  husband  in  Illinois  and  returned  to 
Massachusetts.  Thereafter,  in  Illinois,  the  husband  sued  the 
wife  for  a  divorce  on  the  ground  of  her  desertion,  obtained  a 
decree,  and  married  again.  The  case  decided  in  Massachu- 
setts was  a  suit  brought  in  that  State  by  the  former  wife 
against  the  former  husband  fo'r  divorce  on  the  ground  of 
adultery  alleged  in  have  been  ciunmilted  by  him  with  the  pel- 
son  whom  he  had  married  after  the  decree  of  divorce  in 
Illinois  had  been  rendered.  The  Illinois  decree  was  pleaded 
•in  bar.  The  question  whethej-  the  Illinois  decree  should  be 
given  extraterritorial  effect  in  Massachusetts  depended,  under 
the  rule  announced  in  the  previous  cases,  upon  whether  both 
the  husband  and  wife  were  parlies  in  the  Illinois  decree.  For 
ihe  purpose  ,,1  the  determination  of  this  jurisdict  ional  qiies 

537 


APPENDIX 

i 

tion  it  was  held  that  it  was  necessary  to  ascertain  whether 
the  wife  was  justified,  by  the  fault  of  the  husband,  in  leaving 
him  in  Illinois  and  going  back  to  Massachusetts.  It  was  de- 
cided that  if  she  was  justified  in  leaving  the  husband,  her 
legal  domicil  was  in  Massachusetts,  and  she  was  not  a  party 
to  the  Illinois  decree,  and  that  if  she  was  not  justified  in 
living  separate  from  the  husband,  the  ordinary  rule  being  that 
the  domicil  of  the  husband  was  the  domicil  of  the  wife,  she 
was  domiciled  in  Illinois,  and  must  be  considered  as  subject 
to  the  jurisdiction  of  the  Illinois  court.  Applying  this  legal 
principle  to  the  facts  in  the  case  before  it,  the  court  held  that 
as  there  was  no  evidence  showing  that  the  wife  had  justifiable 
cause  'for  leaving  her  husband,  the  legal  presumption  that  the 
domicil  of  the  husband  was  the  domicil  of  the  wife  prevailed, 
and  that  the  Illinois  decree  was  entitled  to  extraterritorial 
effect  in  Massachusetts,  and  bound  the  wife,  because  rendered 
by  a  court  having  jurisdiction  over  both  parties. 

In  Shaw  v..Sha>w  (1867),  98  Massachusetts,  158,  the  facts 
were  these:  The  parties  were  married  in  Massachusetts,  lived 
there  and  left  together  for  the  purpose  of  settling  in  Colorado. 
On  the  journey,  at  Philadelphia,  the  wife  was  forced  by  the 
extreme  cruelty  of  the  husband  to  leave  him.  She  returned 
to  Massachusetts,  while  he  went  on  to  Colorado.  Subsequent- 
ly the  wife  sued  in  Massachusetts  for  a  divorce  from  bed  and 
board.  The  husband  was  brought  in  by  substituted  service 
and  defaulted.  The  court,  in  the  most  explicit  terms,  recog- 
nized that  a  decree  of  divorce  to  have  extraterritorial  effect 
must  be  rendered  with  jurisdiction  over  both  parties.  It 
said  (p.  159)  :  "For  the  purposes  of  divorce  the  general  rule  of 
jurisprudence  is  that  a  divorce  granted  in  the  place  of  the 
domicil  of  both  parties,  and  there  valid,  is  good  everywhere." 
The  court  came  then  to  consider  whether  it  could  render  a 
decree  in  Massachusetts  in  favor  of  the  wife.  This  depended 
upon  a  statute  of  Massachusetts,  which  authorized  the  grant- 
ing of  a  divorce  where  the  cause  for  divorce  occurred  while 
the  parties  had  lived  together  as  husband  and  wife  is  Massa- 
chusetts, and  where  one  of  them  lived  in  that  State  when  the 
cause  for  divorce  occurred.  It  was  held  that  as  at  the  time- 
of  the  commission  of  the  cruelty  in  Philadelphia  charged 
against  the  husband  the  domicil  of  the  parties  in  Massachu- 
setts had  not  been  lost,  and  as  by  that  cruelty  the  wife  was 
justified  in  returning  to  Massachusetts,  and  the  subsequent  ac- 

538 


II  \HH.M-K     V.     lf.U»IK)CK 

«|uisiti()ii  <il  ;i  new  doinicil  by  the  husband  in  <'olorad<>  «li«l  nol 
make  Mich  domicil  ih.-ii  of  the  wife,  there  was  jurisdiction. 
and  the  divorce  was  jji-anu-d. 

Hood  v.  Hood  (1872),  110  Massachusetts.  It;:;.  was  :m  at- 
tempt again  to  assail  the  validity  of  the  Illinois  decree  "I 
divorce  which  had  been  adjudged  valid  in  11  Alien,  11MJ.  In- 
cause  it  was  found  that  both  the  husband  and  wife  had  been 
parties  to  the  decree.  The  Massachusetts  decree  so  holding 
was  then-lore  held  to  be  reft  judicata  as  to  all  persons  and  io 
foreclose  furtlicr  impiiry  into  the  validity  of  the  Illinois  decree 
of  divorce. 

In  Burlrii  v.  shannon  (1871  i.  11. "i  .Massachusetts,  438,  the 
fact-  leading  up  to  the  controversy  and  those  involved  therein 
were  as  follows:  Shannon  and  his  wife  lived  together  in 
Massachusetts,  where  she  left  him.  Without  stopping  to  refer 
to  prior  legal  controversies  which  arose  between  Shannon  and 
his  wife  and  between  Shannon  and  Mrs.  Burlen.  which  are 
irrelevant  to  lie  considered,  it  suffices  to  say  that  Mrs.  Burlen 
sued  Shannon  in  1850  to  hold  him  liable  for  necessary  sup- 
plies furnished  to  the  wife.  Shannon  resisted  on  the  ground 
that  the  wife  had  been  living  apart  from  him  without  his 
fault  or  consent,  and  this  defense  was  maintained.  (3  Gray, 
387.)  Shannon  went  to  Indiana  in  IS.V.  and  took  up  his 
doinicil  in  that  State,  where,  in  1856,  he  obtained  a  decree  of 
divorce  upon  constructive  service.  Subsequently,  in  Massa 
chusetts.  Mrs.  Burlen  again  sued  Shannon  for  necessaries 
furnished  to  the  wife  between  February  ±!,  1860,  and  Febru- 
ary 7.  ls<;<;.  He  pleaded  the  Indiana  divorce,  and  the  \alidiiy 
of  tin*  divorce  was  assailed  by  Mrs.  Burlen  on  the  ground  that 
the  wife,  had  not  been  a  party  to  the  divorce  cause,  and  there- 
fore the  Indiana  decree  had  not  extraterritorial  effect  in 
M.ISS..I,  husei  ts.  The  court,  in  effect,  after  reiterating  the  pre- 
vious rulings  and  referring  to  the  statute  concerning  the  ne- 
cexity  for  the  presence  of  both  parties  within  the  jurisdic- 
tion where  .a  decree  for  divorce  of  another  State  was  sought 
to  be  given  effect  in  Massachusetts,  also  reiterated  the  previ- 
ous ruling  that  the  wife  might  acquire  a  separate  doinicil 
from  the  husband  if  she  lived  separate  from  him  for  just  i  li- 
able cause.  The  court  was  brought,  therefore,  t..  consider 
whether  Mr.  and  Mrs.  Shannon  were  both  parties  to  the  Indi- 
ana deem-  «'ii  the  ground  that  the  doinicil  of  the  husband  was 
the  doinicil  »\'  the  wife.  The  solution  of  this  question  depend- 

539 


APPENDIX 

ed,  as  it  had  depended  in  Hood  v.  Hood,  11  Allen,  196,  upon 
whether  the  wife  was  absent  from  the  husband  because  of  his 
fault.  On  this  subject  it  was  decided  that  the  previous  judg- , 
ment  in  favor  of  Shannon  and  against  Mrs.  Burlen  in  the 
prior  action  between  the  parties  had  conclusively  determined 
between  them  that  Mrs.  Shannon  was  absent  from  her  hus- 
band without  his  fault  or  consent,  and,  therefore  under  the 
legal  presumption  that  the  domicil  of  the  husband  was  the 
domicil  of  the  wife,  both  the  husband  and  wife  were  parties 
to  the  Indiana  decree  and  it  was  not  subject  to  attack  in 
Massachusetts.  To  cite,  as  has  sometimes  been  done,  the 
language  of  the  opinion  of  the  court  referring  to  the  previous 
judgment  in  the  earlier  action  between  Mrs.  Burlen  and  Shan- 
non as  if  that  language  referred  to  the  Indiana  decree  of  di- 
vorce, leading  to  the  implication  that  that  decree  was  held 
to  be  conclusive,  even  if  only  one  of  the  parties  was  domiciled 
in  the  State  where  the  decree  was  rendered,  not  only  is  a 
plain  misconception,  but  is  equivalent  to  asserting  that  the 
Massachusetts  court  had  overruled  its  previous  decisions  and 
disregarded  the  spirit,  if  not  the  letter,  of  the  state  statute 
without  the  slightest  intimation  to  that  effect. 

In  Cummington  v.  Belchertoioii,  149  Massachusetts,  223,  The 
facts  were  these:  The  parties  to  a  marriage,  celebrated  in 
Massachusetts,  lived  together  in  that  State  until  the  wife  was 
taken  to  a  Massachusetts  asylum  for  the  insane,  when  the 
husband  abandoned  her,  acquired  a  domicil  in  New  York, 
there  brought  suit  on  the  ground  of  fraud  for  the  annulment 
of  the  marriage,  and  obtained  a  decree.  The  wife  was  only 
constructively  served  with  process,  did  not  appear,  and  Avas 
not  represented.  The  Massachusetts  court  held,  upon  the 
authority  of  the  Blackington  case  (141  Massachusetts,  432), 
to  which  we  .have  already  referred,  that  if  the  decree  was 
to  be  recognized  in  Massachusetts,  it  could  only  be  on 
grounds  of  comity.  And  in  concluding  its  opinion  the  court 
said: 

•'Upon  the  ground,  then,  that  the  decree  of  the  New  York 
court  attempts  to  annul  a  marriage  in  Massachusetts  between 
Massachusetts  citizens,  and  thus  affect  the  legal  status  of  the 
woman,  who  has  remained  domiciled  in  Massachusetts,  and 
has  never  been  within  the  jurisdiction  of  the  New  York  court, 
and  deprive  her  of  the  rights  acquired  by  her  marriage,  and 
especially  because  it  declares  the  marriage  void  for  a  j-eason 

540 


HADDOCK    V.    HADDOCK 

•  in  account  of  which  l»y  the  Massachusetts  law  it  cannot  be 
molded,  we  are  of  opinion  tli;it  it  should  not  be  enforced  here, 
;m<l  that  no  principle  of  interstate  comity  requires  ili;it  \\e 
-Imuld  i:ivo  it  effect." 

True  it  is  the  court  reserved  the  question  as  to  what  effect 
mighi  !»•  given  to  a  divorce  if  granted  by  a  New  York  court 
under  < 'it vii  instances  such  as  existed  in  that  case.  But,  a<  a 
suit  for  a  declaration  of  nullity  and  one  for  divorce  are  both 
but  mooYs  for  determining  judicially  the  status  of  the  parties, 
it  must  in  reason  follow  if  jurisdiction  over  both  is  a  prere- 
quisite in  the  one  class,  it  is  of  necessity  also  essential  in  tin- 
other. 

MAIM:.  In  Ihml'nnj  \.  Al<h,i  ilsiSL'i.  !•  Maine,  140.  the 
facts  \veiv  these:  While  living,  together  in  Maine  a  linsbainl 
deserted  his  wife.  He  went  to  North  Carolina,  where  he 
pretended  to  marry,  and  lived  there  with  another  woman.  In 
the  meantime  the  wife  whom  he  had  deserted  took  up  her 
residence  in  Rhode  Island,  where  she  sued  for  a  divorce  on 
the  ground  of  the  adultery  committed  by  the  husbaud\  in 
North  Carolina.  The  husband,  who  w£s  notified  in  North  Caro- 
lina, did  not  appear  in  the  Rhode  Island  divorce  cause.  A  de- 
cree of  divorce  was  granted,  and  the  wife  then  remarried.  The 
first  husband,  during  the  coverture,  owned  and  alienated 
real  estate  in  Maine,  and  a  statute  of  that  State  provided 
that  where  a  divorce  was -decreed  for  adultery  by  the  hus- 
band, dower  might  be  assigned  to  the  divorced  wife  in  »)ie 
same  manner  as  if  the  husband  were  dead.  The  divorced  wife 
brought  an  action  of  dower  in  a  court  in  Maine.  The  Rhode 
Island  decree  was  held  to  possess  validity  in  Maine  and  the 
statute  relating  to  dower  was  decided  not  to  be  Hmited  to 
divorces  decreed  within  the  State  of  Maine.  Considering  the 
opinion  in  its  entirety',  it  is  plain  that  the  Rhode  Island  di- 
vorce was  given  recognition  from  considerations  of  right  and 
justice  and  upon  the  ground  of  state  comity.  Thus,  the  court 
called  attention  to  the  fact  that  adultery  was  a  cause  for  di- 
vorce in  both  States  and  that  divorces  were  granted  in  Maine 
against  non-residents ;  and,  it  was  observed,  that  "there  would 
be  great  inconvenience  in  holding"  that  divorces  ought  not 
to  be  recognized  in  other  States  when  granted  in  the  State 
where  the  injured  /mi-tii  resided  against  one  who  had  estab- 
lished his  domicil  in  another  State  and  there  committed 
adultery. 

641 


APPENDIX 

True  it  is  in  the  course  of  the  opinion  reasoning  was  em- 
ployed tending  to  show  that  the  Ehode  Island  court  might  be 
considered  to  have  had  jurisdiction  in  the  complete  sense  and 
it  was  intimated  that  the  full  faith  and  credit  clause  might 
have  application,  but  the  operation  of  the  Ehode  Island  de- 
cree in  Maine  was  by  the  decree  of  the  Maine  court  expressly 
limited  to  the  dissolution  of  the  marriage  (p.  151).  How  far 
removed  this  was  from  giving  to  the  Rhode  Island  decree  the 
benefit  of  the  full  faith  and  credit  clause  will,  we  think,  be 
made  clear  by  what  follows. 

Harding  \.  Alden  was  decided  at  the  July  term,  1832.  Less 
than  two  years  afterward,  on  March  5,  1834,  Public  Laws, 
1834,  c.  116,  p.  H'9,  the  statute  of  Maine  regulating  divorces 
was  supplemented  by  various  provisions,  one  such  being  the 
following:  "Sec.  2.  Be  it  further  enacted,  That  in  all  cases 
where  one  party  has  been  or  shall  be  divorced  from  the  bonds 
of  matrimony,  the  court  granting  the  same  may,  upon  appli- 
cation therefor,  grant  to  the  other  party  a  like  divorce,  on 
sucji  terms  and  conditions  as  the  said  court  in  the  exercise  of 
a  sound  discretion  may  judge  reasonable."  This  provision 
was  carried  into  the  Revised  Statutes  of  1840,  c.  89,  sec.  2, 
and  although  repealed  in  1850,  in  a  general  revision  of  the 
divorce  laws,  it  was  held  that  th6  legislature  did  not  intend 
to  deprive  the  courts  of  Maine  of  the  power  to  entertain  a* 
suit  for  divorce  brought  by  a  person  from  whom  the  other 
party  to  a  marriage  had  already  been  divorced,  and  that  the 
•courts  of  Maine  still  possessed  power  to  exercise  jurisdiction 
over  such  suits.  Stilphen  v.  Stilphen,  58  Maine,  508.  In  the 
cited  case,  although  a  husband  had  already  obtained  an  ab- 
solute diyorce,  a  like  divorce  was  granted  to  the  wife,  and 
the  court  allowed  to  her  certain  articles  of  personal  property 
and  the  sum  of  $500.  In  overruling  exceptions  to  the  decree 
the  appellate  court  adopted  the  theory  that  the  second  decree 
in  no  wise  impugned  the  first,  and  was  important  only  as 
enabling  "the  court  to  make  such  ancillary  decrees  concern- 
ing the  property  as  justice  and  humanity  may  require"  (p. 
517).  In  the  course  of  the  opinion  the  court  said  (p.  516)  : 

"There  is  ,no  class  of  cases  in  which  the  court  is  so  liable 
to  be  imposed  upon,  and  a  decision  obtained  contrary  to  the 
truth,  as  ex  parte  divorce  suits.  The  notice  is  often  imperfect, 
so  that  the  confession  of  guilt  implied  in  the  default  is  de- 
ceptive. And  it  is  well  known  that  witnesses,  testifying  in 

542 


HADDOCK    V.    HADDOCK 

the  presence  of  one  of  the  parties,  and  in  the  absence  of  the 
iT.  will  so  alter  and  magnify  the  faults  of  the  absent,  and 
everything  that  makes  against  the  party  present, 
that  it  is  impossible  to  tell  where  the  truth  and  real  merits 
of  the  controversy  are.  When  both  parties  are  present,  each 
is  sure  to  put  the  other  in  the  wrong;  and  a  fortiori  is  this 
.  true,  when  one  of  the  parties  is  permitted  to  testify  in  the 
absence  of  the  other,  as  is  now  the  case  in  divorce  suits.  We 
repeat,  therefore,  that  there  is  no  class  of  cases  in  which  the 
court  is  so  liable  to  be  imposed  upon;  and  it  seems  to  us  of 
the  utmost  importance  that  the  court  should  be  possessed  of 
the  power  in  some  form  to  revise  their  decisions  in  this  class 
of  cases ;  otherwise,  the  grossest  injustice  is  liable  to  be  done." 

In  the  light  of  this  decision  it  cannot  be  assumed  that  the 
courts  of  Maine  would  give  to  a  citizen  of  that  State  against 
whom  a  divorce  had  been  obtained  in  a  foreign  jurisdiction, 
upon  roiixtrurtive  service,  a  less  degree  of  relief  than  they 
afford  as  to  a  decree  rendered  in  Maine,  both  parties  being 
present  and  bound  by  the  decree. 

RHODE  ISLAND. — Ditsvn  \.  Ditson  (1856),  4  R.  I.  87,  was 
a  suit  for  divorce  on  the  grounds  of  desertion,  extreme  cruelty, 
and  non-support,  brought  by  a  wife  domiciled  in  Rhode  Island 
against  the  husband,  who  had  never  resided  in  Rhode  Island, 
and  whose  whereabouts  was  unknown.  •  The  question  was 
whether  the  Rhode  Island  court  ought  to  exercise  jurisdiction. 
The  opinion  was  mainly  devoted  to  refusing  the  reasoning 
employed  by  Chief  Justice  Shaw  in  his  opinion  in  the  case  of 
Lyon  v.  Lyon,  2  Gray,  367,  in  which  case,  as  we  have  previous- 
ly shown,  the  Massachusetts  court  refused  to  give  effect  to  a 
Rhode  Island  decree  of  divorce  where  both  parties  were  not 
within  the  jurisdiction.  The  Rhode  Island  court  (in  the 
Ditson  case)  in  effect  declared  that  it  would  not  exercise  juris- 
diction to  grant  a  divorce  if  it  considered  that  a  decree  ren- 
dered by  it  would  not  be  entitled  to  extraterritorial  effect  be- 
cause of  a  lack  of  actual  jurisdiction  over  the  defendant. 
The  court,  however,  proceeded  to  reason  that  a  suit  for  divorce 
was  in  effect  a  proceeding  in  rein,  and  that  jurisdiction  over 
one  of  the  parties  to  a  suit  for  the  dissolution  of  the  marriage 
tie  drew  to  the  court  jurisdiction  of  the  other  party,  and  there- 
by gave  full  and  complete  jurisdiction  over  the  status  of  both 
parties,  and  upon  that  hypothesis  decided  that  it  would  exer- 
cise jui  is<!i(  lion,  and  that  its  decree  dissolving  the  marriage 

543 


APPENDIX 

>s 

would  be  entitled  to  the  benefit  of  the  full  faith  and  credit 
clause  of  the  Constitution  and  have  binding  efficacy  in  every 
other  State. 

NEW  JERSEY. — Whilst  the  courts  of  New  Jersey  have  exer- 
cised the  power  to  grant  a  divorce  from  a  non-resident  de- 
fendant, upon  constructive  service,  those  courts  have  from  the 
beginning  applied  to  similar  decrees  of  divorce  granted  in 
other  States,  when  sought  to  be  enforced  in  New  Jersey 
against  citizens  of  that  State,  a  rule  like  the  one  prevailing  in 
New  York,  that  is,  they  decline  to  enforce  them  even  upon 
the  principles  of  c6mity.  Doughty  v.  Doughty,  28  N.  J.  Eq. 
581,  586; -Flower  v.  Flower,  42  Nr  J.  Eq.  152.  Recently,  how- 
ever, it  has  been  decided,  Felt  v.  Felt,  59  N,  J.  Eq.  606,  that 
where  a  decree  of  divorce  was  rendered  in  another  State,  and 
the  complainant  alone  was  subject  to  the  jurisdiction  of  the 
court,  but  it  was  shown  that  the  defendant  had  been  person- 
ally served  outside  of  the  jurisdiction  with  notice  of  the  pend- 
ency of  the  divorce  proceeding  and  was  afforded  reasonable 
opportunity  to  make  defense  and  did  not  avail  of  the  oppor- 
tunity, effect  would  be  given  to  such  decree  in  New  Jersey, 
upon  principles  of  ,comity,  provided  that  the  ground  upon 
which  the  decree  rested  was  one  which  the  public  policy  of 
New  Jersey  recognized  as  a  sufficient  cause  for  divorce.  In 
Wallace  v.  Wallace,,  62  N.  J.  Eq.  509,  the  subject  is  quite  fully 
reviewed. 

OHIO. — In  Cooper  \.  Cooper  (1836),  7  Ohio,  594,  without 
citation  of  authority,  a  divorce  granted  in  Indiana,  from  a 
resident  of  Ohio;  upon  constructive  service,  was  held  to  bar 
an  application  for  divorce  and  alimony  in  Ohio.  In  Mansfield 
v.  Mclntyre  (1840),  10  Ohio,  27,  despite  a  divorce  obtained 
in  Kentucky,  by  a  hus'band,  upon  constructive  service,  the 
divorced  wife  was  regarded  in  Ohio  as  the  widow  of  her  for- 
mer husband  after  his  decease,  and  as  such  widow  entitled  to 
dower. 

In  Cox  v.  Cox,  19  Ohio  St.  502,  decided  at  the  December 
term,  1869,  the  facts  were  these:  The  husband  deserted  the 
wife  in  Ohio,  went  to  Indiana  and  there  obtained  a  divorce, 
upon  constructive  service.  The  wife  remained  in  Ohio,  and 
three  years  after  the  granting  of  the  Indiana  divorce  to  the 
husband  she  sued  him  for  divorce  and  for  alimony,  alleging 
abandonment  and  gross  neglect  of  duty.  The  trial  court 
granted  a  divorce  and  alimony.  The  husband  appealed,  but 

544 


II.U.IMK-K   v. 

as  such  an  appeal,  under  the  statutes  of  Ohio,  did  not  affect 
the  decree  as  to  the  divorce,  the  District  Court  consi.l 
only  the  question  of  alimony  and  rendered  a  new  decree  for 
alimony  against  the  defendant.  The  case  was  then  taken  to 
the  Supreme  Court  of  the  State.  In  that  court  attention  was 
tailed  to  the  fact  that  under  the  statutes  of  Ohio  ami  the  de- 
cisions of  its  coin-is  jurisdiction  might  be  exercised  over  non- 
n-M'deiits  in  divorce  cases,  and  reference  was  made  to  various 
authorities  as  tending  to  show  that  public  policy  required  the 
recognition  of  the  validity  of  such  decrees  in  other  States  as 
to  the  dissolution  of  the  marriage.  After  stating  the  facts. 
ami  observing  that  the  wife  was  entitled  under  the  law-  <" 
Ohio  to  either  divorce  or  alimony,  or  both,  at  her  election,  and 
alluding  to  the  Indiana  decree,  the  court  said  (p.  .'ili'i  . 

"The  question,  therefore,  is,  whether  the  <•./•  /*///•/ r  decree 
can  be  made  available,  not  merely  to  effect  a  dissolution  of  the 
marriage,  but  to  defeat  tbo  right  of  the  petitioner  to  the  ali- 
mony which  the  statute,  upon  the  facts  as  they  exist  in  regard 
to  the  husband's  desertion,  intended  to  provide  for  her. 

"We  think  the  decree  ought  not  to  have  such  effect. 

"In  arriving  at  this  conclusion  we  make  no  distinction  be 
tween  a  decree  rendered,  under  the  circumstances  of  this  case. 
in  a  foreign,  and  one  rendered  in  a  domestic  forum. 

''In  either  case,  to  give  a  decree  thus  obtained  the  effect 
claimed  for  it.  would  be  to  allow  it  to  work  a  fraud  upon  the 
pecuniary  rights  of  the  wife.  Such  a  result,  in  our  opinion, 
is  rendered  necessary  by  no  principle  of  comity  or  public 
policy — the  only  grounds  upon  which  c.r  /xirtr  decrees  of  di- 
vorce are  aut hori/.ed  and  supported. 

"It  is  not  essential  to  the  allowance  of  alimony  that  the 
marriage  relation  should  subsist  up  to  the  time  it  is  allowed. 
<>n  appeal,  alimony  may  be  decreed  by  the  District  Court, 
notwiihstanding  the  subsisting  divorce  pronounced  by  the 
Court  of  Common  IMeas.  It  is  true  that  the  statute  speaks 
of  the  allowance  as  being  made  to  the  wife.  But  the  term 
*wife'  may  be  regarded  as  used  to  designate  the  person,  and 
not  the  actual  existing  relation;  or  the  pel  it  loner  may  still 
be  regarded  as  holding  the  relation  of  wife  for  the  purpose  of 
enforcing  her  claim  to  alimony." 

The  following  cases  were  cited  by  the  court  as  sustaining 
the  right  of  the  wife  to  maintain  an  inde]>endent  proceeding 
for  alimony,  even  after  the  husband  had  obtained  a  divorce: 

645 


APPENDIX  N 

v.  Wilson,  8  Yerger,  67;  Crane  v.  Mey'innis,  1  Gill 
&  J.  463,  and  Shot^ell  v.  Shotwell,  1  Sm.  &  M.  Ch.  R,  51. 

In  Doerr  v.  Foray  the  (1803),  50  Ohio  St.  726,  an  Indiana 
divorce  granted  to  a  husband,  upon  constructive  service,  was 
held  not  to  bar  the  right  of  the  wife  to  dower  in  lands  in  Ohio 
owned  during  coverture  by  the  husband. 

ALABAMA. — In  Thompson  v.  State  (1856),  28  Alabama,  12 
the  facts  were  these:  Thompson  deserted  his  family  in  Miss- 
issippi, went  to  Arkansas  and  there  obtained  a  divorce  upon 
constructive  service.  The  wife  returned  to  her  father's  home 
in  Alabama,  and,  after  the  divorce,  the  husband  also  went  to 
Alabama,  where  he  again  married.  He  was  prosecuted  for 
and  convicted  of  bigamy.  The  conviction  was  set  aside,  how- 
ever, upon  the  ground  that  the  guilt  or  innocence  of  the  ac- 
cused depended  upon  the  question  as  to  whether  he  had  a 
bona  fide  domicil  in  Arkansas  during  the  pendency  of  the  pro- 
ceedings for  divorce.  Harding  v.  Alden,  9  Maine,  140,  was 
cited  as  authority. 

In  a  subsequent  case,  however,  Turner  v.  Turner  (1870), 
44  Alabama,  437,  the  Supreme  Court  of  Alabama  strictly  lim- 
ited, as  against  a  citizen  of  Alabama,  the  effect  of  a  divorce 
rendered  in  another  State  upon  constructive  service.  The 
parties  were  married  in  Alabama,  where  the  husband  deserted 
the  wife,  and  located  in  Indiana,  where  he  obtained  a  divorce 
upon  constructive  service.  The  wife  remained  in  Alabama, 
and,  after  the  granting  of  the  divorce  to  the  husband,  she  sued 
him  in  Alabama  for  a  divorce  and  alimony.  The  husband 
pleaded  the  Indiana  decree  in  bar.  The  trial  court,  however, 
held  that  the  wife  was  entitled  to  maintain  her  suit  and  en- 
tered a  decree  for  divorce  and  alimony.  In  affirming  the  de- 
cree the  Supreme  Court  of  Alabama,  upon  the  authority  of 
Tlioiiiftxon  v.  State,  supra,  said  that  the  decree  of  divorce  ob- 
tained by  the  husband  in  Indiana  might  protect  him  against 
prosecution  for  bigamy  should  he  marry  again  in  Alabama. 
Kef  erring  to  that  decree  it  further  said  (p.  450)  : 

"But  without  stopping  to  inquire  whether  it  was  obtained 
by  him  by  fraud,  and  therefore  is  vicious  on  that  account  or 
not,  it  certainly  cannot  affect  the  rights  of  the  complainant, 
except  her  right  in  the  husband  as  husband.  If  it  is  valid, 
it  unmarries  him  and  sets  him  free  from  his  marital  vows  to 
her.  He  is  no  longer  the  complainant's  husband.  But  it 
does  not  settle  her  right  to  alimony;  it  does  not  settle  her 

546 


HADDOCK     V.     HADDOCK 

right  to  dower  in  his  lands,  and  her  statutory  right  to  di> 
intuition  of  his  property  in  this  State,  in  the  event  she  should 
Mirvive  him,  nor  any  other  interest  of  a  pecuniary  .character 

she  iimy  have  against  him.     .     .     .     It  is  the  duty  of  the  State 

10  protect    its  o\vn  citizens,  within  its  own   borders.     This   is 
the  natural  compensation   for  allegiance.     This  high  duty  e\ 
lends  to  all   the  pecuniary  rights  of  the  citizens,  as  well  as  to 
the  rights  of  security  of  IMM-SOU.     .     .     .     No  obligation    of 
comity   is  paramount  to  this  duty.      Without    a   constant    ami 
effective   exertion    of   it,   citizenship   would    become    a    farce. 
.     .     .     The^wife  is  as  much   the  citixen  of  the  State  as  the 
husband,  ami   is  entitled  to  the  protection  of  its  laws  to  the 
same  extent,  so   long  as  she  remains  within   its  jurisdiction. 

1 1  would  be  a  scandal  to  justice  to  imperil   her.  and  sacrifice 
her  must   important  and  cherished  rights  upon  a  mere  techni- 
cality; a  technicality  that  often  contradicts  the  truth.     When 
her  protection  requires  it.  it  would  be  cruelly  unjust  for  the 
State,  of  her  actual  residence  and  domicil,  to  repudiate  its 
own  right  of  jurisdiction  to  give  her  aid.     \  therefore  think 
that  the  better  opinion   is.  that  she  has  the  right  to  file  her 
bill  here,  and   to  all   the  relief  that  the  court  could  give  her. 
notwithstanding  her  husband  might  not  be  domiciled  in  this 
State  at  the  commencement  and  during  the  whole  pendency 
of  her  litigation  with  him.    .    .     . 

"Then,  if  the  state  courts  have  competent  jurisdiction  in 
such  a  case,  as  undoubtedly  they  have,  they  may  go  on  and 
exercise  that  jurisdiction  in  the  manner  and  to  the  extent 
prescribed  by  their  own  laws. 

'•ruder  the  laws  of  this  State,  by  the  contract  and  con- 
summation of  a  marriage,  the  wife,  if  she  has  no  separate  es- 
tate, becomes  entitled  to  dower  in  the-hushand's  lands,  ami 
a  certain  distributive  interest  in  his  personal  estate,  if  sin- 
survives  him,  and  to  temporary  and  permanent  alimony  out 
of  his  estate  upon  a  separation  by  divorce  in  her  favor.  These 
are  rights  that  she  cannot  legally  be  deprived  of  without  her 
consent  or  her  fault.  ...  If  this  were  not  so.  then  these 
important  statutory  provisions  in  favor  of  the  wife  would  be 
repealed  or  rendered  null  by  a  foreign  divorce,  of  which  she 
had  no  notice  and  no  knowledge,  during  its  whole  progress 
through  the  forms  of  a  foreign  court.  To  sue  in  her  own  dom- 
icil is  necessary  for  the  protection  of  the  wife.  It,  therefore, 
overrides  the  technical  rule  that  the  husband's  domicil  is  also 

547 


the  domicil  of  the  wife.  .  .  .  Here  the  testimony  shows 
that  the  wife  has  no  separate  estate.  The  witnesses  for  the 
defendants  say  when  she  was  married  she  'brought  nothing 
with  her.'  It  also  appears  that  during  her  connection  with 
the  defendant  Matthew  Turner,  as  his  wife,  she  was  a  chaste, 
industrious,  economical,  faithful,  useful  and  obedient  wife; 
and  that  the  husband's  property  is  very  considerable;  worth 
possibly  not  less  than  one  hundred  thousand  dollars.  It  is 
also  shown  that  his  three  children  by  a  former  marriage  are 
already  sufficiently  provided  for. 

"Under  such  a  state  of  facts  the  sum  of  thirty  thousand 
dollars  was  not  an  unreasonable  sum  for  permanent  alimony, 
to  be  allowed  to  the  wife,  nor  the  sum  of  eight  hundred  dollars 
too  large  for  temporary  alimony.  .  .  ." 

INDIANA.— In  Tolen  v.  Tolen  (1831),  2  Blackf.  407,  the  facts 
were  these:  A  wife,  on  being  deserted  in  Kentucky,  removed 
to  and  became  domiciled  in  Indiana,  and  after  a  residence 
there  of  five  years  sued  for  a  divorce  from  the  non-resident 
husband.  In  an  opinion  of  great  length  the  court  considered 
the  question  of  its  power  to  grant  a  divorce  which  would  be 
valid  in  Indiana,  and  decided  it  had  such  power,  but  express- 
ly reserved  passing  on  the  question  whether  the  decree  would 
have  extraterritorial  force. 

In  Hood  v.  State  (1877),  56  Indiana,  263,  271,  it  was  declar- 
ed that  as  an  ex  parte  divorce  in  favor  of  one  domiciled  within 
the  jurisdiction  of  a  State,  and  against  a  non-resident,  al- 
though founded  upon  constructive  service,  was  valid  as  to  the 
plaintiff,  "public  policy  demands  that  it  should  be  held  valid 
as  to  both  parties." 

In  Hilbish  v.  Hfittle  (1896),  145  Indiana,  59,  certain  sections 
of  the  Indiana  Kevised  Statutes,  wherein  it  was  provided  that 
the  divorce  of  one  party  to  a  marriage  should  dissolve  the  con- 
tract as  to  both,  and  that  a  divorce  decreed  in  another  State 
liy  a  court  having  jurisdiction  of  the  cause  should  have  full 
effect  in  Indiana,  were  held  to  be  applicable  to  a  decree  of 
divorce  granted  in  another  State,  in  favor  of  a  husband,  upon 
constructive  service,  and  the  same  effect  was  given  to  the 
decree,  as  to  the  rights  of  the  wife  in  the  property  of  the  hus- 
band in  Indiana,  as  if  the  divorce  had  been  rendered  in  In- 
diana. 

MISSOURI. — In  Gould  v.  Crow,  57  Missouri,  200,  a  decree 
of  divorce  regularly  obtained  by  a  husband  in  Indiana,  on  an 

548 


IfAPliOCK     V.     IIAIHUICK 

order  nl  publication,  without  personsil  service,  \v;is  held  to 
operate  ;is  ;i  divorce  in  favor  of  the  lin-liaiid  in  .Missouri,  -u 
;is  io  prevent  the  wife  from  claiming  her  dower  in  hinds  in 
.Missouri  owned  by  the  hnshsmd.  ll<tr<lhi<i  v.  Alilrii,  !i  Maine. 
140.  w;is  relied  upon  .MS  ;inihoril y.  A  statute  of  .Missouri, 
barring  the  cl;iiin  of  :i  wile  for  dower  sifter  divorce  granted  by 
i-eas.iii  of  her  fault,  was  held  |o  apply  to  all  divorces,  whether 
obtained  in  Missouri  or  in  other  States,  and  whether  obtained 
on  personal  service  or  by  order  of  publication.  The  doctrine 
of  Gould  v.  Crmr  was  reaflirnied  and  applied  in  .\iillnnni  v. 
/,'/rr.  llii  Missouri.  I'l1:!. 

WISCONSIN. —  In  XIuif<r  v.  HitxItiH'll  (isr»!)i.  L'4  Wisconsin, 
:'.7L'.  an  r.r  /mrtr  divorce  granted  a  wife  in  .Minnesota  upon  con- 
structive service  of  the  defendant,  a  citizen  of  Minnesota,  was 
held  upon  the  grounds  of  comity  to  be  conclusive  in  Wisconsin 
in  respect  to  the  status  or  domestic  and  social  condition  of 
the  wife.  The  decree  was  held  to  bar  an  siction  for  criminal 
intercourse  against  the  person  whom  the  complainant  in  the 
divorce  suit  insirried  after  the  granting  of  the  divorce. 

In  CooA-  v.  Too/,-  ilSSi'i.  r>{\  Wisconsin.  \{.*r>,  however,  in  an 
elaborsite  opinion,  sin  f.r  fiaTtr  divorce  obtained  in  Michigan 
upon  constructive  service  merely,  by  si  husband  who  had  de- 
serted his  wife  in  Wisconsin,  wsis  held  not  to  affect  the  status 
of  the  wife  in  Wisconsin  nor  to  bar  her  from  suing  in  Wiscon- 
sin for  divorce,  alimony,  allowance  and  a  division  of  the  prop- 
erty of  such  linsbsind  situated  within  Wisconsin. 

Deducing  the  Isiw  of  the  seversil  Stsites  from  the  rulings  of 
their  courts  of  hist  resort  which  we  have  just  reviewed  sind 
ignoring  mere  minor  differences,  the  law  of  such  States  is  em- 
hrsu-ed  within  one  or  the  other  of  the  following  headings: 

'/.  Stsites  where  the  power  to  decree  n  divorce  is  recognized, 
based  upon  the  mere  domicil  of  the  plsiintiff.  silthough  the 
decree  when  rendered  will  be  but  opersitive  within  the  borders 
of  the  Stsite.  wholly  irrespective  of  any  force  which  may  be 
given  such  decree  in  other  States.  I'nder  this  heading  sill 
of  the  Stsites  are  embraced  with  the  possible  exception  of 
Rhode  Island. 

6.  Stsites  which  decline,  even  upon  principles  of  comity,  to 
reco-ini/e  sind  enforce  sis  to  their  own  citi/.ens.  within  their 
own  borders,  decrees  of  divorce  rendered  in  other  States,  when 
the  court  rendering  the  same  had  jurisdiction  over  only  one  of 
the  parties.  I'mlcr  this  hesiding  is  embraced  Massachusetts, 

549 


APPENDIX 

New  Jersey   (with  the  qualification  made  bv  the  decision  in 
59  N.  J.  Eq.  606)  and  New  York. 

c.  States  which,  whilst  giving  some  effect  to  decrees  of  di- 
vorce rendered  against  its  citizens,  in  other  States  where  the 
court  had  jurisdiction  of  the  plaintiff  alone,  either  place  the 
effect  given  to  such  decrees  upon  the  principle  of  state  comity 
alone,  or  make  such  limitations  upon  the  effect  given  to  such 
decree  as  indubitably  establishes  that  the  recognition  given 
is  a  result  merely  of  state  comity.     As  the  greater  includes 
the  less,  this  cla*ss  of  course  embraces  the  cases  under  the 
previous  heading.     It  also  includes  the  States  of  Alabama. 
Maine,  Ohio  and  Wisconsin. 

d.  Cases  which,  although  not  actually  so  deciding,  yet  lend 
themselves  to  the  view  that  ex  parte  decrees  of  divorce  ren- 
dered in  other  States  would  receive  recognition  by  virtue  of 
the  due  faith   and  credit   caluse.     And  this  class  embraces 
Missouri  and  Ehode  Island. 

Coming  to  consider,  for  the  purpose  of  classification,  the 
decided  cases  in  other  States  than  those  previously  reviewed, 
which  have  been  called  to  our  attention,  the  law  of  such 
States  may  be  said  to  come  under  one  or  the  other  of  the  fore- 
going headings,  as  follows: 

Proposition  a  embraces  the  law  of  all  the  States,  since  in 
the  decision  of  no  State  is  there  an  intimation  expressing  the 
exception  found  in  the  Ehode  Island  case  which  caused  us  to 
exclude  that  State  from  this  classification. 

Under  proposition  6  conies  the  law  of  the  States  of  Penn- 
sylvania, Vermont  and  South  Carolina.  A  line  of  decisions  of 
the  State  of  North  Carolina  would  also  cause  us  to  embi»ace 
the  law  of  that  State  within  this  classification,  but  for  a  doubt 
engendered  in  our  minds  as  to  the  effect  of  the  law  of  North 
Carolina  on  the  subject,  resulting  from  suggestions  made  by 
the  North  Carolina  court  in  the  opinion  in  the  BiiltreU,  case, 
52  S.  E.  Rep.  .V>. 

Proposition  c  embraces  the  law  of  Kansas,  Louisiana.  Mary- 
land, Michigan.  Minnesota,  Nebraska  and  New  Hampshire. 
And  it  is  pertinent  here  to  remark  that  in  Michigan,  3  Comp. 
Laws  Michigan  (1897),  par.  8621,  c.  232,  sec.  6,  the  obtaining 
of  a  divorce  in  another  State  from  a  citizen  of  Michigan  is 
ma'de  cause  for  the  granting  of  a  divorce  in  Michigan  to  its 
citizens.  A  like  provision  is  also  in  the  statutes  of  Florida. 
Eev.  Stat.  Florida,  (1902),  sec.  1480. 

550 


MAIU'OCK     V.     MAI K 

I'ndcr    proposition    //    we    embrace     the     remaining     Stales. 

although    ;is    to    several    the    classification    ln;iy    admit    of    doubt, 
vix...  California.    Illinois.    Iowa,   Kentucky  ;in<l  Tennessee. 

1 1    indubitably,    therefore,    follows    from    the    special    review 
\\  e  have  made  of  cases  in  certain  States,  and  the  classification 
just    made  of  tin1  remaining  state  cases  which    were  called    to 
our  attention  and   which  we  have  previously  cited  in   the  mar- 
gin, thai    the  contention   is  without   foundation,  that   such  case- 
estaldish   hy  an  o\er\\  helming  preponderance  that,  by   the   law 
of   the  several    States,  decrees  of  divorce   obtained    in   a    State 
with   jurisdiction   alone  of  the   plaintiff  are.   in   virtue   of   the 
full  faith  and  credit  clause  of  the  Constitution,  entitled   to  he 
enforced    in    another   State   as   against    citix.ens   of    such    State. 
Indeed    the   analysis   and    classification    which    we   have   made 
serves    conclusively    to    demonstrate    that    the    limited    recog- 
nition  which   is  given   in   most   of  the  States   to   such   <:r  />urt<- 
decrees   of  divorce   rendered   in   other  States   is   wholly   incon- 
sistent with   the  theory  that  such  limited  recognition  is  lia-ed 
upon   the  operation  of  the  full   faith   and   credit  clause  of  the 
Constitution  of  the  ("niled  States,  and  on  the  contrary  is  con- 
sistent only  with  the  conception  that  such  limited  recognition 
as    is   jiiven    is   hased    upon    state   comity.      No   clearer  demon- 
stration  can   he  made  of  the  accuracy  of  this  statement    than 
the  ohvious  consequence  that  if  the  fiill  faith  and  credit  clause 
wene  now    to   he   held   applicable   to   the   enforcement     in    the 
States  generally  of  decrees  of  divorce  of  the  character  of  the 
one  here  involved  it  would  follow  that   the  law  of  nearly  all  of 
the   States    would    he  overthrown,  and    thus   it    would    come  to 
pan  that   the  decisions  which  were  relied  upon  as  establishing 
that    the  due   faith   and   credit    clause  applies   to   such   decree- 
would   be  overruled   by  the  adoption  of  the  proposition   which 
it   is  insisted   those  decisions  maintain.     The  only  escape  from 
this  conclusion  would  be  to  say  that   the  law  of  the  States  a- 
sho\\  n  by  the  decisions  in  question  would  remain  unaffected  by 
the  ruling  of  the  full   faith  and  credit  clause  because  not    re 
pugnant   to  that   clause.     This  would  be,  however,  but  to  assert 
that    the    full    faith    and    credit    clause    required    not    that    full 
faith  and  credit  he  given  in  one  State  to  the  decrees  of  another 
State,  but   that    only  a    limited   and    restricted   enforcement  of 
a   decree  of  one  State   in   another   would   fulfill     the    require 
nients   of   that    provision    of   the   Constitution.      To   so   decide 
would  be  to  destroy    the   true   import    of   the   full     faith     and 

551 


APPENDIX 

credit  clause  as  pointed  out  in  the  outset  of  this  opinion. 
Thus,  in  its  ultimate  aspect  the  proposition  relied  upon  re- 
duces itself  to  this,  either  that  the  settled  law  of  most  of 
the  States  of  the  Union  as  to  divorce  decrees  rendered  in  one 
State,  where  the  court  rendering  the  decree  had  jurisdiction 
only  of  the  plaintiff,  must  be  held  to  be  invalid,  or  that  an 
important  provision  of  the  Constitution  of  the  United  States 
must  be  shorn  of  its  rightful  meaning. 

Without  questioning  the  power  of  the  State  of  Connecticut 
to  enforce  within  its  own  borders  the  decree  of  divorce  which 
is  here  in  issue,  and  without  intimating  a  doubt  as  to  the 
power  of  the  State  kof  New  York  to  give  to  a  decree  of  that 
character  rendered  in  Connecticut,  within  the  borders  of  the 
State  of  New  York  and  as  to  its  own  citizens,  such  efficacy 
as  it  may  be  entitled  to  in  view  of  the  public  policy  of  that 
State,  we  hold  that  the  decree  of  the  court  of  Connecticut  ren- 
dered under  the  circumstances  stated  was  not  entitled  to 
obligatory  enforcement  in  the  State  of  New  York  by  virtue  of 
the  full  faith  and  credit  clause.  It  therefore  follows  that 
the  court  below  did  not  violate  the  full  faith  and  credit  clause 
of  the  Constitution  in  refusing  to  admit  the  Connecticut  de- 
cree in  evidence;  and  its  judgment  is,  therefore, 

Affirmed. 

MR.  JUSTICE  BROWX,  with  whom  were  MR.  JUSTICE  HARLAX, 
-Mij.  JUSTICE  BREWER  and  MR.  JUSTICE  HOLMES,  dissenting. 

Marriage  between  these  parties  was  solemnized  June  4, 
1868.  They  separated  the  same  day,  without  a  consummation, 
and  have  never  lived  together  since.  No  matrimonial  domicil 
was  ever  established  in  New  York  or  elsewhere.  Defendant 
left  New  York  soon  after  the  wedding,  drifted  about  the 
•  country  for  several  years,  and  finally  settled  in  Connecticut 
in  1877;  remained  there  twelve  years,  during  which  time,  and 
in  1881,  he  obtained  a  divorce  in  the  Superior  Court  in  Li-tch- 
lield  County,  which  he  now  sets  up  in  defense  of  this  action. 
Plaintiff  took  no  steps  for  twenty-six  years  to  obtain  a  legal 
separation  or  maintenance,  when,  in  July,  1804,  she  applied  to 
the  Superior  Court  of  the  State  of  New  York  for  a  summons 
by  publication.  The  defendant  did  not  appear,  and  a  decree 
was  rendered  against  him  by  default,  separating  the  parties 
and  granting  alimony  of  $1,500  a  year.  This  decree  appr;irs 

552 


HAHIMU'K     V.  JIAIU'oi'K 

in   have    been    abortive,   so    I'jir   as    respects   alimony    at    least, 
probably  for  lack  of  personal  sen  ice  on  tin-  defendant.     .Mean 
time,    and    in    is'.H.    defendant    had    inherited     a     considerable 
property  from  liis  father. 

This  action  was  begun  hy  a  summons  dated  -lime  :'..  l^'.m. 
thirty  one  years  after  the  marriage;  \\a^  v.-rved  upon  the  de- 
fendant. \\lio  answered  December  IS.  Is'.l'.l.  setting  lip,  amongM 
oiher  tilings,  the  decree  of  the  Superior  Court  of  Ulchtield 
County,  dissolving  the  marriage,  the  validity  of  which  pre- 
sents the  only  Federal  question  in  this  case. 

1.  This  decree  is  attacked  upon  Hie  ground  that  the  Con 
necticui  court  acted  without  jurisdiction  of  the  parties  law- 
fully obtained.  The  record  in  that  case  shows  that  notice  of 
the  pendency  of  the  petition  was  ordered  to  be  published  in  a 
Litchtield  paper,  and  also  that  a  copy  of  the  petition  be  sent 
to  the  respondent  liy  mail,  postage  paid,  at  Tarrytown,  New 
York.  While  there  is  no  aflidavit  of  the  publication  of  the 
notice;  there  is  a  recital  in  the  decree  ''that  said  complaint  and 
writ  have  been  duly  served  upon  the  defendant  pursuant  to 
an  order  of  notice  made  thereon  by  the  clerk  of  this  court." 
This  is  snfh'cient  priinii  hide  evidence  of  the  publication  to 
entitle  the  record  to  be  received.  Applegate  v.  Li-.i-inn-tun  dc. 
Mining-C'o.,  117  U.  S.  255,  li(J»,  wherein  it  was  said  by  the 
court  that  "while  it  must  be  conceded  that,  in  order  to  give 
the  court  jurisdiction  over  the  persons  of  the  defendants,  all 
the  steps  pointed  out  by  the  statute  to  effect  constructive 
service  mi  non-residents  were  necessary,  yet  it  does  not  follow 
that  the  evidence  that  the  steps  were  taken  must  ap]K-ar  in  the 
record,  unless  indeed  the  statute,  expressly  or  by  implication, 
requires  it.  ...  Therefore  every  presumption  not  in- 
consistent with  the  record  is  to  be  indulged  in,  in  favor  of  its 
jurisdiction.  .  .  .  It  is  to  be  presumed  that  the  court  be- 
fore making  its  decree  took  care  to  see  that  its  order  lor 
constructive  service,  on  which  its  right  to  make  the  decree 
depended,  had  been  obeyed." 

Ax  the  record  was  rejected  for  reasons  appearing  only  upon 
its  face,  it  is  unnecessary  to  decide  whether  the  recitals  in 
the  decree  can  l>e  contradicted.  Possibly  the  New  York  court 
niijjht  "have  assailed  its  validity  by  showing  that,  notwith- 
xtanding  The  recitals  in  the  record,  the  court  acquired  no 
jurisdiction  of  the  defendant  by  failure  to  comply  with  the 
order  of  the  court  with  reference  to  the  publication  of  notice 

553 


APPENDIX  , 

in  a  newspaper,  or  in  sending  a  copy  of  the  petition  and  com- 
plaint to  the  defendant  by  mail  at  Tarrytowu,  New  York,  the 
last  known  place  of  residence.  The  fact  that  the  referee  re- 
fused to  admit  the  record,  even  as  prima  facie  evidence,  fore- 
closed any  defense  founded  upon  the  actual  failure  to  obtain 
jurisdiction  over  the  defendant. 

There  is  no  doubt  of  the  proposition  that  a  decree  of  divorce 
may  be  lawfully  obtained  at  the  matrimonial  doinicil,  notwith- 
standing that  the  defendant  may  have  taken  up  his  or  her 
residence  separate  from  the  other  party  in  another  State,  pro- 
viding that  the  law  of  the  domicil  with  respect  to  the  personal 
service  or  publication  be  scrupulously  observed.  Atherton  v. 
Atherton,  181  U.  S.  155. 

Doubtless  the  jurisdiction  of  the  court  granting-  the  divorce 
may  be  inquired  into,  and  if  it  appear  that  the  plaintiff  had 
not  acquired  a  bona  fide  domicil  in  1-hat  State  at  the  time  of 
instituting  proceedings,  the  decree  is  open  to  a  collateral  at- 
tack, Bell  v.  Bell,  181  U.  S.  175,  and  a  recital  in  the  proceed- 
ings of  a  fact  necessary  to  show  jurisdiction  may  be  contra- 
dicted. Thompson  v.  Whitman,  IS  Wall.  457;  Streiticolf  v. 
Streitwolf,  181  U.  S.  179;  Andrews  v.  Andrews,  188  U.  S.  14. 
Subject  to  these  conditions,  each  State  has  the  right  to  regu- 
la^e  the  marital  status  of  its  citizens,  at  least  so  far  as  to 
determine  in  what  manner  and  by  whom  marriages  may  be 
solemnized,  what  shall  be  deemed  the  age  of  consent,  what 
obligations  are  assumed,  what  property  rights  are  created, 
for  what  causes  divorces  shall  be  granted,  for  what  length  of 
time  the  domicil  of  plaintiff  shall  have  been  acquired  prior  to 
the  institution  of  the  proceedings,  and  in  what  manner  notice 
shall  be  given  to  the  defendant.  Nor  is  the  power  of  the  leg- 
islature in  thi^s  connection  ousted  by  the  fact  that  the  other 
party  to  the  contract  resides  in  another  State,  provided  that 
in  case  of  proceedings  adverse  to  such  party  he  or  she  shall 
be  given  such  notice  as  due  process  of  law  requires.  If  such 
proceedings  be  in  rem  or  quasi  in  rein,  notice  by  publication 
is  ordinarily  deemed  sufficient.  But  in  case  of  actions  in  per- 
sonam  for  the  recovery  of  damages,  personal  service  within 
the  jurisdiction  is  vital  to  the  proceedings.  Pennoyer  v.  Neff, 
95  U.  S.  714;  Hilling  v.  Kaw  Valley  Railway  and  Improve- 
ment Co.,  130  U.  S.  559. 

By  the  laws  of  Connecticut  of  1878,  c.  71,  p.  305,  exclusive 
jurisdiction  is  given  to  the  Superior  Courts  to  grant  divorces 

554 


U.M.I..M-K    v.    IIAI.IXM  K 

I'm-  several  causes,  amon^  which  are  "\\iltull  desertion  for 
three  years  with  t<>t;il  neglect  of  duty."  with  ;i  further  provi- 
sion i  (Jfii.  Siats.  4.V».~ii,  "that  plaintiff  shall  have  continu- 
ously resided  in  the  State  three  years  next  before  tin-  date  of 
(lit-  complaint."  with  certain  except  ions  not  matt-rial  to  be 
noticed.  A  further  provision,  sec.  l.V>:;.  that,  "where  tin-  ad 
vei-^e  party  resides  out  of.  or  is  absent  from  tin-  Stair,  or  the 
whereabouts  of  the  adxerse  party  is  unknown  to  the  plainiill, 
any  judge  or  clerk  of  the  Supreme  Court  of  Errors,  or  the  Sn 
perior  Court,  or  any  county  commissioner,  may  make  such 
order  of  notice  as  lie  may  deem  reasonable,  and.  such  notice 
having  been  «jiveu  and  duly  proved  to  the  court;  it  may  hear 
such  complaint  if  it  find  that  the  defendant  has  actually  re 
ceived  notice  that  the  complaint  is  pending,  and  if  it  shall  not 
appear  that  the'defendant  has  had  such  notice,  the  court  may 
hear  «such  case,  or,  if  it  see  cause,  order  such  further  notice 
to  bo  «;-iven  as  it  may  deem  reasonable,  and  continue  the  com- 
plaint until  the  order  is  complied  with.'7 

The  complaint  alleged  a  wilful  desertion  of  the  plaintiff  for 
morei  than  three  years,  and  the  court  found  this  to  be  the 
fact. 

-.  The  case  turns  upon  the  (jiiestion  whether  the  Superior 
Court  of  Li tch field  County  gained  jurisdiction  by  a  residence 
of  the  plaintiff  within  the  State  for  more  than  three  years. 
The  testimony  also  showed  that  the  defendant  had  acquired  a 
separate  domicil  in  New  York,  and  had  been  living  there  for 
about  thirteen  years. 

In  discussing  this  question  two  propositions  may  be  ad- 
mitted at  once,  and  discarded  as  having  no  relevancy  to  the 
case  ?  ' 

1.  That  a  judgment  for  damages  in  an  action  ///  iirr^mmn 
is  valid  only  when  personal  service  has  been  made  upon  the 
defendant  within  the  jurisdiction  of  the  court  rendering  the 
judgment.  This  disposes  at  once  of  the  cases  of  P en-no ycr  v. 
!».">  r.  s.  711:  of  Mississippi  &c.  R.  R.  Co.  v.  Ward,  2 
Black,  4.^.  win-re  an  Iowa  court  had  undertaken  to  abate  a 
nuisance  on  the  Illinois  side  of  the  Mississippi  river;  and  of 
Drltiinn-i  a*-.  If.  If.  ('».  \.  I'ritiixi/lruiiiu.  r.i'*  I".  S.  ;Mi».  where 
a  State  had  attempted  to  tax  property  having  a  permanent 
in  another  State. 

•J.    That    the  courts  of  one  State  may  not  grant  a  divorce 
an   absent  defendant  to  any  person   who  has  not   ac 

555 


APPENDIX 

quired  a  boim  fide  domicil  in  that  State.  The  same  rule  applies 
if  he  has  removed  thither  solely  for  the  purpose  of  acquiring 
a  domicil  and  obtaining  a  divorce  for  a  cause,  which  would 
have  been  insufficient  in  the  State  from  which  he  removed. 
Andrews  v.  Andrews,  188  U.  S.  14. 

The  jurisdiction  of  the  Connecticut  court  in  this  case  is 
shown,  not  by  the  facts  as  they  appear  in  this  case,  but  from 
the  record  in  that  case,  and  primarily  from  the  petition,  which 
under  the  practice  in  that  State  is  incorporated  with  the  sum- 
mons. The  allegations  are: 

"On  the  first  day  of  January,  1869,  the  defendant  wilfully 
deserted  the  plaintiff,  and  has  continued  said  desertion,  with 
total  neglect  of  all  the  duties  of  the  marriage  on  her  part  to  be 
performed  to  the  date  of  this  writ,  being  for  more  than  three 
years,  and  during  the  plaintiff's  residence  in  this  State." 

It  is  conceded  that  such  desertion  is  good  ground  for  'a  di- 
vorce in  Connecticut,  which  may  be  granted  to  a  plaintiff  who 
has  continuously  resided  in  the  State  three  years  next  before 
the  date  of  the  complaint.  The  complaint  obviously  made  a 
case  for  divorce  under  the  statute.  The  court  found  that  the 
complaint  and  writ  had  been  duly  served  on  the  defendant, 
pursuant  to  an  order  of  notice  made  thereon  by  the  clerk ;  that 
the  allegations  of  the  complaint  had  been  sustained  and  a 
divorce  was  granted. 

The  case  then  resolves  itself  into  the  single  question  whether 
a  divorce  granted  to  a  plaintiff  lawfully  domiciled  within  a 
State  as  against  a  defendant  domiciled  in  another  State,  who 
has  been  served  by  publication  or  letter  only,  is  a  valid  de- 
fense to  a  suit  by  the  latter  for  a  separation  and  alimony. 

Certain  cases  in  this  court  tend  strongly  to  support  the  pro- 
ceedings in  Connecticut.  Strader  v.  Graliam,  10  How.  82,  was 
an  action  to  recover  the  value  of  certain  slaves  carried  into 
Ohio,  a  free  State.  The  case  was  dismissed,  as  involving  a 
question  of  the  local  law  of  Kentucky,  the  court  remarking: 
''Every  State  has  an  undoubted  right  to  determine  the  status, 
or  domestic  and  social  condition,  of  the  persons  domiciled 
within  its  territory.  .  .  .  and  that  it  was  exclusively  in  the 
power  of  Kentucky,"  (wherein  the  suit  was  brought)  "to  de- 
termine for  itself  whether  their  employment  in  another  State 
should  or  should  not  make  them  free  on  their  return." 

In  Barber  v.  Barber,  21  How.  582,  a  New  York  court  de- 
creed a  separation  and  alimony  to  the  wife.  The  husband  re- 

556 


HAKIKK'K    V.     II  A  I.I  MM   K 

moved  to  Wisconsin  for  the  purpose  of  placing  himself  beyond 
the  jurisdiction  of  the  court  which  could  enforce  it.  and  there 
obtained  a  divorce  a  vinculo  upon  the  ground  of  abandon- 
ment. The  sole  question  raised  by  the  record  was:  "Whether 
a  wife  divorced  a  mcn#a  et  thoro  can  acquire  another  domicila- 
tion  in  a  State  of  this  Union  different  from  that  of  her  hus- 
band, to  entitle  her.  1»\  her  next  friend,  to  sue  him  in  a  court 
of  the  United  States,  having  equity  jurisdiction,  to  recover 
from  him  alimony  due,  and  which  he  refuses  to  make  arrange- 
ment to  pay;  and  whether  a  court  of  equity  is  not  a  proper 
tribunal  for  a  remedy  in  such  a  case." 

It  was  a  suit  to  recover  upon  a  judgment  obtained  in  New 
York  before  proceedings  instituted  in  Wisconsin,  and  was 
sustained.  Obviously,  the  Wisconsin  divorce  was  no  defense. 
but  its  validity  was  not  impugned. 

Chccn'r  v.  ]\'ilx»n.  !i  Wall.  10S,  turned  upon  certain  rights 
of  property,  and  incidentally  upon  a  divorce  obtained  in  In- 
diana, in  a  suit  in  which  the  defendant  appeared.  The  case, 
however,  is  valuable  for  two  questions  decided:  First,  that  a 
decree  of  divorce,  valid  and  effectual  by  the  laws  of  the  State 
'in  which  it  was  obtained,  is  valid  and  effectual  in  all  other 
States;  second,  that  a  wife  may  acquire  a  domicil  different 
from  her  husband's  whenever  it  is  necessary  or  proper  that 
she  should  have  such  a  dprnicil ;  and  on  such  a  domicil,  if  the 
case  otherwise  allow  it,  may  institute  proceedings  for  divorce, 
though  it  be  neither  her  husband's  domicil  nor  have  been  the 
domicil  of  the  parties  at  the  time  of  the  marriage,  or  of  the 
offense. 

Of  course,  it  follows  that  if  the  wife  may  obtain  a  new 
domicil  her  husband  may  do  likewise,  as  was  done  in  this 
case,  after  the  separation  or  abandonment  had  taken  place. 
In  delivering  the  opinion,  Mr.  Justice  Swayue  observed :  "The 
decree  (of  divorce)  was  valid  and  effectual,  according  to  the 
law  and  adjudications,  in  Indiana." 

The  Constitution  and  laws  of  the  United  States  give  the  de- 
cree the  same  effect  elsewhere  which  it  had  in  Indiana.  It 
a  judgment  is  conclusive  in  the  State  where  it  is  rendered,  it 
is  equally  conclusive  everywhere'  in  the  courts  of  the  United 
States." 

In  Cheely  v.  Clayton,  110  U.  S.  701,  a  divorce  obtained  in  a 
territorial  court,  upon  notice  by  publication  insufficient  under 
the  laws  of  the  Territory,  was  held  to  be  of  no  effect.  The 

557 


APPENDIX 

court,  however,  observing :  "If  a  wife  is  living  apart  Jrom  her 
husband  without  sufficient  cause,  his  domicil  is  in  law  her 
domicil ;  and,  in  the  absence  of  any  proof  of  fraud  or  miscon- 
duct on  his  part,  a  divorce  obtained  by  him  in  the  State  of  hi& 
domicil,  after  reasonable  notice  to  her,  either  by  personal 
service  or  by  publication,  in  accordance  with  its  laws,  is  valid, 
although  she  never  in  fact  resided  in  that  State,"  citing 
Burlen  v.  Shannon,  115  Massachusetts',  438,  and  Hunt  v.  Hunt, 
72  N.  Y.  218. 

In  Maynard  v.  Hill,  125  U.  S.  190,  a  legislative  divorce  was 
upheld,  and  it  was  said  that  the  fact  that  no  cause  existed  for 
the  divorce,  and  that  it  was  obtained  without  the  knowledge 
of  the  wife,  cannot  affect  the  validity  of  the  act.  It  was  fur- 
ther said  that  though  the  conduct  of  the  husband  merited  the 
strongest  reprobation,  his  abandonment  of  his  wife,  his  loose 
morals  and  shameless  conduct  could  have  no  bearing  upon  the 
power  of  the  assembly  to  pass  the  act. 

Four  recent  decisions  in  this  court  are  too  important  to  pass 
unnoticed.  In  Bell  v.  Bell,  181  U.  S.  175,  and  in  Streitivolf  v. 
Streitwolf  (p.  179),  it  was  held 'that  a  divorce  obtained  in  a 
State  in  which_  neither  party  was  domiciled,  upon  service  by 
publication  and  in  another  State,  was  entitled  to  no  faith  and 
credit.  These  decisions  ,were  unanimous.  And  in  Andrews  v. 
Andrews,  188  U.  S.  14,  that  a  divorce  obtained  by  one  who 
had  gone  into  another  State  to  procure  a  divorce  in  fraud  of 
the  law  of  the  domicil,  was  also  invalid. 

There  remains  the  case  of  Atherton  v.  Atlierton,  181  U.  S. 
155,  a  divorce  obtained  by  a  husband  in  Kentucky  which  had 
been  the  matrimonial  domicil,  though  the  wife  had  been  absent 
froni  the  State  for  several  months,  and  apparently  had  at- 
tempted to  acquire  a^  new  domicil  in  New  York.  The  court 
took  care  to  confine  the  case  to  the  one  point  decided,  namely, 
the  validity  of  a  divorce  obtained  at  the  matrimonial  domicil. 
The  court  out  of  abundant  caution  expressly  disclaimed  that 
the  case  involved  the  validity  of  a  divorce  granted,  on  con- 
structive service,  by  the -court  of  a  State  in  which  only  one  of 
the  parties  ever  had  a  domicil ;  nor  the  question  to  what  ex- 
tent the  good  faith  of  the  domicil  may  be  afterwards  inquired 
into.  "In  this  case,  the  divorce  in  Kentucky  was  by  the  court 
of  the  State,  which  had  always  been  the  undoubted  domicil 
of  the  husband,  and  which  was  the  only  matrimonial  domicil 
of  the  husband  and  wife.  The  single  question  to  be  decided. 

558 


IIAIUHM-K     V.     HAIUMM   K 

i>  tlio  validity  i»|'   tli;il   divorce,  granted   alter  such   notice  had 
been  given  as  was  required  liy  the  statutes  of  Kentucky. " 
While  the  .(Ilicrton  case.  ;is  already  stated,  was  confined  to 

;i   divorce  obtained   ;it    the   ln:it  rilliniliill  (loiliicil,   the  c;ises  cited 

by  Mr.  Justice  (Jray  in  his  opinion  relate  to  divorces  obtained 
in  a  State  which  was  the  domieil  only  of  the  complaining 
party,  and  are  practically  the  same  as  those  cited  hy  him  in 
his  opinion  as  Chief  Justice  of  Massachusetts  in  liiirlin  \. 
siuiininii.  11. "•  .Massachusetts,  438.  In  reading  the  two  CMOS 
together  one  is  strongly  impressed  with  the  idea  that  in  the 
.\tlu-rttni  case  he  had  the  former  case  in  mind,  and  gave  it 
such  approval  as  the  facts  in  the  latter  case  would  war-rant. 
Not  only  had  the  Court  of  Appeals  of  Kentucky  decided  that 
a  wife  residing  in  that  State  was  entitled  to  obtain  a  decree 
of  divorce  against  her  husband  who  had  left  the  Stale.  A'///////. v 
v.  Rlii/inx,  7  P>ush,  316;  Perzel  v.  /'</:</,  !>1  Kentucky.  (\:\l. 
but  a  number  of  cases  from  other  States  were  cited  holding 
to  the  same  principle. 

The  opinion  of  the  court  in  the  present  case  admits  that 
u  here  the  domieil  of  the  husband  is  also  the  domieil  of  mat- 
rimony, the  courts  of  that  domieil  may  disregard  an  unjusti- 
fiable absence  of  the  wife  therefrom,  and  treat  her  as  having 
her  domieil  there  for  the  purpose  of  dissolving  the  marriage  as 
to  both  parties,  and  that  such  dissolution  would  be  recogni/.ed 
in  all  other  States  by  virtue  of  the  full  faith  and  credit  clause, 
citing  to  this  effect  Atherton  v.  Atlierton,  181  U.  S.  !.">.">.  and. 
as  a  corollary  therefrom,  it  is  admitted  that  no  question  can 
arise  concerning  the  right  of  the  State  of  Connecticut  to  give 
elVect  to  a  decree  of  divorce  rendered  in  favor  of  the  husband 
while  domiciled  in  that  State.  The  question  is,  undoubtedly. 
as  stated,  whether  the  Connecticut  court,  in  virtue  of  the 
domieil  of  the  husband  in  that  State,  had  jurisdiction  to 
render  a  decree  against  the  wife  which  was  entitled  to  be  en- 
forced in  other  States,  under  the  full  faith  and  credit  clause. 

I  deny,  however,  that  the  final  question  is  whether  this 
would  be  enforcing  a  persomil  judgment  rendered  in  another 
State  against  the  defendant,  over  whom  the  court  rendering 
the  judgment  had  not  acquired  jurisdiction.  A  proceeding 
for  divorce  is  not  in  personwm  nor  of  an  exceptional  character, 
except  so  far  as  all  proceedings  in  retn  are  governed  by  a  dif- 
ferent rule  from  that  applicable  to  proceedings  in  />»T.VO/WM. 
The  validity  of  the  latter  class  depends  upon  personal  service 

559 


APPENDIX 

of  the  defendant  being  obtained  within  the  jurisdiction.  The 
validity  of  the  former  depends  upon  the  jurisdiction  of  the 
court  over  the  res — in  this  case  the  marriage  relation,  the 
domicil  of  the  plaintiff,  and  such  jurisdiction  over  the  defend- 
ant as  is  consonant  with  the  general  principles  of  the  con- 
stitution with  regard  to  due  •  process  of  law. 

The  proposition  of  the  opinion,  as  we-understand  it,  may  be 
summarized  as  follows: 

That,  if  one  government  by  virtue  of  its  authority  over  mar- 
riage, may  dissolve  the  tie  as  to  citizens  of  another  govern- 
ment, that  other  government  would  have  a  similar  power,  and 
hence  the  right  of  every  government  over  its  own  citizens 
might  be  rendered  nugatory  by  the  exercise  of  the  power 
which  every  other  government  possesses.  To  illustrate  by  the 
present  case:  That,  if  the  husband  may  desert  his  original 
domicil  in  New  York,  go  to  the  State  of  Connecticut,  acquire 
a  domicil  there  and  procure  a  divorce  which  would  be  bind- 
ing in  New  York'  as  to  the  party  there  domiciled,  it  would 
follow  that  the  power  of  the  State  of  New  York  as  to  the  dis- 
solution of  the  marriage,  as  to  its  domiciled  citizen,  would 
be  of  no  practical  avail.  The  opinion,  however,  fails  to  state 
the  logical  result  of  this  proposition,  viz.,  that  no  divorce 
would  be  possible  in  either  State  without  a  personal  service 
upon  the  other  within  the  State.  If  the  husband,  having  his 
domicil  in  Connecticut,  could  not  obtain  a  divorce  against 
his  wife  domiciled  in  New  York  without  a  personal  service,, 
it  follows  that  the  wife  domiciled  in  New  York  could  not  ob- 
tain a  divorce  against  her  husband  in  that  State  without  a 
personal  service  there. 

Undoubtedly  the  laws  of  some  States  are  more  liberal  upon 
the  subject  of  divorce  than  those  of  other  States,  but  that 
does  not  affect  the  question.  If  the  complaining  party  has 
acquired  a  domicil  in  the  State  in  which  he  institutes  pro- 
ceedings, he  is  entitled  to  the  benefit  of  the  laws  of  that 
State  with  respect  to  the  causes  of  divorce." 

It  is  argued  that,  as  the  Constitution  delegated  no  authority 
to  the  Government  of  the  United  States  on  the  subject  of  mar- 
riage and  divorce,  yet,  if  the  validity  of  the,  Connecticut  di- 
vorce in  this  case  be  sustained,  it  follows  that  the  destruction 
of  the  power  of  the  States  over  the  dissolution  of  marriage  of 
its  own  citizens  would  be  brought  about  by  the  full  faith  and 
credit  clause  of  the  Constitution.  But  this  was  the  very  point 

560 


MAhlioCK     V.     IIA1HMM    K 
decided     in     the       \tlnrtoii     case,     where    ;|     divorce     obtained     in 

Kentucky  by  publication  was  held  good  in  New  York,  as 
agaiii>l  ;i  proceeding  by  the  wife  for  ;i  divorce  in  lli;il  Slate. 
It  is  true  that  tin-  matrimonial 'doffitall  \v;is  in  Kentucky. 
But  tliis  does  not  aft'ect  tin-  proposition  asserted  in  the  opin- 
ion, that  the  decree  did  work  a  dissolution  of  the  marriage,  as 
to  her  by  th<>  operation  of  the  full  faith  and  credit  claii-e  «.| 
the  Constitution,  and  to  that  extent  it  did  work  a  destruction 
of  the  power  <•!'  the  State  of  New  York  over  the  dissolution 
of  the  marriage,  lint  the  argument  to  that  elVect  was  not 
considered  by  this  court  to  lie  sound.  It  does  undoubtedly 
follow  that  the  rrx,  that  is,  the  marriage  relation.  wa>  as 
much  in  tho  State  of  New  York  as  it  was  in  the  State  of  Con 
necticut,  but  it  does  not  follow  that  the  action  of  the  Con- 
necticut court  with  respect  to  that  res  is  not  as  much  obliga- 
tory in  New  York  as  in  Connecticut.  It  is  of  the  very  essence 
of  proceedings  in  rnn  that  the  decree  with  respect  to  the  ret, 
whether  it  be  a  vessel,  a  tract  of  land  or  the  marriage  rela- 
tion, is  entitled  to  be  respected  in  every  other  State  or  country. 
The  stutu*  tixed  by  the  adjudication  in  the  State  of  the  former 
is  operative  everywhere.  Indeed,  the  proposition  is  so  ele- 
mentary as  not  to  need  the  citation  of  an  authority. 

The  conclusion  of  the  argument  is  that,  the  courts  of  New 
York  having  the  same  power  to  decree  a  dissolution  of  the 
marriage  ;it  the  suit  of  the  wife,  that  the  courts  of  Connecticut 
would  have  to  make  a  similar  decree  at  the  suit  of  the  hus 
band,  it  would  become  a  mere  race  of  diligence  between  the 
parties  in  seeking  different  forums  in  oilier  States;  or  the 
celerity  by  which  in  such  States  judgments  of  divorce  might 
be  procured,  would  have  to  be  considered  in  order  to  decide 
which  forum  was  controlling.  Granting  this  to  be  the  case, 
does  not  every  plea  of  res  adjudicata  presuppose  a  prior  judg- 
ment, and  is  it  a  defense  to  such  plea  that  such  judgment  was 
obtained  by  superiority  of  a  race  of  diligence?  The  whole 
doctrine  is  founded,  if  not  upon  the  doctrine  of  superior  dili- 
gence, at  least  u|x»n  the  theory  of  a  prior  judgment,  which 
ti\es  irrevocably  the  rights  of  the  parties,  win-never  and  when- 
ever these  rights  may  come  in  <piestion.  Nor  is  the  rule  less 
operative  \\here  suits  an-  in  different  States  and  the  laws  ap 
plicnble  to  the  questions  therein  arising  are  different.  To 
illustrate:  Suppose  a  note  and  mortgage  were  given  for  usuri- 
ous interest,  and  the  mortgage  was  sought  to  be  foreclosed  in 

561 


APPENDIX  / 

a  State  where,  by  statute,  usury  would  invalidate  both  princi- 
pal and  interest,  and  a  decree  were  obtained  dismissing  the 
bill,  can  it  be  doubted  that  if  the  note  were  sued  upon  in 
another  State  where  usury  did  not  invalidate  the  Security  the 
plea  of  res  adjudicata  would  be  sustained  upon  the  ground 
that  the  rights  of  the  parties  had  been  definitely  fixed  in  the 
suit  for  the  foreclosure  of  the  mortgage?  It  seems  to  me 
the  same  rule  applies  in  this  case.  So  long  as  no  proceedings 
are  taken,  the  marriage  would  remain  valid  both  by  the  laws 
of  Connecticut  and  of  New  York.  But  if  a  suit  be  instituted 
by  either  party,  by  the  husband  for  a  divorce  or  by  the  wife 
for  a  maintenance,  and  the  question  of  marriage  or  no  mar- 
riage be  made  an  issue,  and  decided  in  the  case  first  brought, 
that  decree  is  forever  binding  upon  both  parties.  Had  the 
wife  in  this  case  brought  suit  to  dissolve  the  marriage,  or  for 
a  maintenance  in  affirmation  of  the  marriage,  the  decree  of 
the  court  in  New  York  would  have  been  as  binding  upon  the 
court  in  Connecticut  as  the  decree  obtained  in  Connecticut 
ought  to  be  upon  the  wife  in  New  York. 

The  cases  in  the  state  courts,  with  a  few  exceptions,  hereiu- 
~after  noted,  overwhelmingly  preponderate  in  holding  that 
where  the  plaintiff  has  acquired  a  b<ma  fide  domicil  in  a 
particular  State  he  may  lawfully  appeal  to  the  courts  of  that 
State  for  a  dissolution  of  the  marriage  tie,  for  the  causes  per- 
mitted' by  its  statutes,  and  may  call  in  the  non-resident  de- 
fendant by  publication.  To  abstract  all  these  cases  -would 
unduly  prolong  this  opinion. 

In  many  of  them  the  full  faith  and  credit  clause  of  the  Con- 
stitution does  not  seem  to  have  been  called  to  the  attention  of 
the  court,  and  the  case  was  disposed  of  upon  principles  of 
comity,  which  give  to  the  court  a  certain  latitude  of  discre- 
tion, whereas,  under  the  full  faith  and  credit  clause,  the  con- 
sideration given  to  a  decree  in  the  State  where  it  is  rendered 
is  obligatory  in  every  other  State. 

One  of  the  earliest  of  these  cases  is  that  of  Harding  v.  Alden, 
9  Maine,  140,  in  which  the  parties  separated,  the  husband  go- 
ing to  North  Carolina  and  the  wife  to  Rhode  Island.  She 
began  proceedings  there,  which  culminated  in  a  divorce  for 
adultery  committed  in  North  Carolina,  the  husband  having 
been  personally  cited  to  appear,  but  refusing  to  do  so.  The 
divorce  was  held  to  be  valid,  the  court  observing  that  uthe 
protection  of  innocent  parties  and  the  purity  of  public  morals 

562 


H.MUMM-K     \.     HAMMOCK 

require  that  divorces  lawfully  pronounced  in  ..m-  jurisdiction, 
ami  file  new  relations  thereupon  formed,  should  In*  recogni/ed 
as  operative  and  binding  everywhere."  in  the  absence  of  fraud 
or  collusion.  The  ruling  was  that  the  wife  was  entitled  to 
dower  iu  lauds  of  which  the  husband  was  sei/.ed  during  ro\er 
lure,  the  statute  expressly  giving  the  right  where  divorce  was 
decreed  for  the  cause  of  adulterv.  as  if  the  husband  were 
-lead. 

hi  IttirlKT  \.  li'tinl,  10  .Massachusetts,  iMili.  the  p;irties  origi 
ually  domiciled  in  Massachusetts  removed  to  Vermont,  and 
established  a  permanent  dmim-il  there.  The  court,  while  re- 
pudiating the  idea  that  a  divorce  could  be  granted  to  a  person 
who  was  not  domiciled  in  Vermont,  held  the  divorce  to  be 
good. 

In  H<»n<l  v.  Ilnnd,  11  Allen,  196,  a  divorce  obtained  in  Illi- 
nois by  the  husband  for  desertion,  upon  notice  by  publication 
in  a  newspaper,  was  held  to  be  valid  as  against  the  wife,  al- 
though she  was  then  living  in  Massachusetts  under  an  ajjree 
ment  on  his  part  to  pay  her  a  certain  sum  per  week;  and  al- 
though she  had  no  actual  notice  of  the  proceedings,  and  was 
not  in  Illinois  during  the  pendency  thereof.  It  was  further 
held  that  she  could  not,  in  a  libel  for  divorce  brought  by  her 
in  Massachusetts,  offer  evidence  that  the  Illinois  decree  was 
obtained  by  fraud,  and  upon  facts  which  would  not  entitle 
her  to  a  divorce  in  Massachusetts.  In  a  subsequent  case  be- 
tween the  same  parties,  llll  Massachusetts.  4<;:{.  the  court 
again  decided  that  the  Illinois  decree  could  not  be  impeached, 
and  that  she  was  not  entitled  to  dower  in  any  lands  of  which 
ilie  husband  was  sei/ed  during  the  coverture. 

The  whole  subject  was  very  carefully  considered  in  Iturli  n 
v.  Xlntnmni,  1 1.~>  Massachusetts,  438,  which  was  an  action 
against  the  husband  for  board  furnished  the  wife.  The  hus- 
band, whose  wife  was  living  apart  from  him  without  justiti- 
able  cause,  removed  to  Indiana,  acquired  a  domicil  there  and 
obtained  a  decree  of  divorce  by  publication,  and  by  leaving  a 
summons  at  her  abode  in  Massachusetts.  The  divorqe  was 
held  to  be  valid  in  Massachusetts  as  to  all  persons,  although 
the  wife  had  never  been  in  Indiana,  never  appeared  in  the 
suit  there,  had  no  knowledge  that  her  husband  contemplated 
going  to  that  State,  or  had  left  Massachusetts,  until  after 
he  had  tiled  his  libel  for  divorce.  The  authorities  are  review 
I'd  by  Mr.  .Justice  dray,  and  the  conclusion  reached  that  the 
divorce  in  Indiana  was  valid. 

56? 


APPENDIX 

Cumminyton  v.  Belchertown,  149  Massachusetts,  223,  was  an 
action  to  recover  expenses  incurred  by  the  plaintiff  for  the 
support  of  an  insane  pauper.  The  husband  had  removed  to 
another  State  and  procured  a  decree  annulling  the  marriage 
on  the  ground  of  fraud  in  concealing  from  him  the  fact  of  in- 
sanity before  their  marriage.  Notice  of  the  proceedings  was 
served  upon  her,  but  she  was  not  represented,  and  it  was  held 
that  the  decree  wds  insufficient  to  annul  her  marriage  in  Mass- 
achusetts. It  was  held,  under  the  familiar  rule  that  the  ju- 
risdiction of  the  foreign  court  may  be  inquired  into,  that  the 
wife,  when  the  proceedings  were  commenced  and  concluded 
was  utterly  insane,  and  that  the  record  of  the  New  York 
courts  showed  her  to  have  been  so,  and  that  no  guardian  was 
appointed.  xThe  case  was  disposed  of  as  one  over  which  the 
Nc\v  York  court  had  acquired  no  jurisdiction.  It  does  not 
qualify  in  any  way  the  previous  case  of  Burlen  v.  Shannon. 

The  case  of  Ditson  v.  Ditson,  4  R.  I.  8-7,  is  directly  in  point, 
and  I  understand  it  to  l)e  so  admitted.  It  was  held  that  a 
divorce  in  Rhode  Island  on  the  ground  of  desertion  was  val>d, 
though  the  husband  had  never  been  within  the  jurisdiction  of 
Rhode  Island,  and  only  constructive  notice  of  the  pendency 
of  the  petition  had  been  given  him. 

The  rule  in  Kentucky  is  settled  in  Rhi/ins  v.  If  hi/ in  K,  7  Bush. 
316,  in  which  a  wife  proceeded  against  her  husband  as  a  non- 
resident by  a  warning  order,  and  it  was  held  that  the  court 
liad  jurisdiction  to  grant  her  a  divorce.  Chief  Justice  Robert- 
son remarking:  "It  would  be  a  reproach  to  our  legislation 
if  a  faithless  husband  in  Kentucky  could  by  leaving  the  State 
deprive  his  abandoned  wife  of  the  power v  to  obtain  a  divorce 
at  home."  In  Hawkins  v.  Ragsdale,  SO  Kentucky,  353,  it  was 
held  that  a  divorce  obtained  by  the  husband  in  Indiana  by 
constructive  service  determined  the  status  of  the  party  in 
Kentucky,  and  that  under  the  statutes  of  that  State  it  barred 
all  claim  to  curtesj7  or  dower  in  Kentucky  lands.  To  the  same 
•effect  is  Perzel  v.  Perzel,  91  Kentucky,  634. 

The  law  of  California  is  settled  in  In  re  'Newman,  75  Califor 
nia,  213,  to  the  effect  that  a  suit  for  divorce,  so  far  as  it  affects 
the  status  of  the  parties  and  the  custody  of  their  children,  is 
a  proceeding  in  rem,  and  service  by  publication  on  a  non- 
resident defendant  is  good.  This  ruling  was  repeated  in  In  re 
James,,  99  California,  374,  where  it  is  declared  that  such  de- 
cree, is  equally  valid  in  other  States. 

564 


HADIxiCK    V.    HADDOCK 

Nowhere  is  the  rule  more  strongly  asserted  tli;tn  in  Tenues- 
see,  where  a  decree  obtained  in  Illinois  by  publication  was 
sustained  in  Thonis  \.  hiin/,  95  Tennessee,  60.  and  where  it 
seems  to  have  been  held  that  the  decree  could  not  he  i in] cach- 
ed, even  by  showing  the  absence  of  necessary  residence. 

In  Cooper  v.  Cooper,  7  Ohio  St.  594,  it  was  held  that  a  di- 
vorce granted  in  Indiana  precluded  an  application  for  a  di- 
vorce and  alimony  in  Ohio.  In  Cox  v.  Cox,  19  Ohio  St.  .',111'. 
the  validity  of  a  foreign  decree  of  divorce  obtained  by  con- 
structive service,  except  so  far  as  regarded  the  question  of 
alimony,  was  sustained.  The  same  ruling  was  made  in  7>oo  / 
v.  Forxi/tlir,  ."ill  Ohio  St.  TlMi,  holding  that  while  the  Indiana 
divorce  was  good,  it  did  not  affect  the  property  rights  of  the 
wife  in  the  State  of  Ohio. 

The  rule  in  Missouri  is  stated  in  C'mltl  v.  Cnur,  r>7  Mis 
souri  200,  that  a  divorce  regularly  obtained  by  the  husband  in 
Indiana  on  an  order  of  publication  operates  as  a  divorce  in 
his  favor  in  Missouri,  so  as  to  prevent  his  wife  from  claiming 
dower  in  lands  owned  by  him  in  that  State.  The  decree  so 
pronounced  is  a  judgment  ///  nut  and  is  valid  everywhere  un 
der  the  Constitution  and  laws  of  the  United  States.  A  like 
ruling  was  made  in  Aittli<mi/  v.  A'/rr.  110  Missouri.  I'l':'.. 

The  law  in  Kansas  is  settled  in  R(KJ<T*  \.  Ifojin-*.  ."><;  K;i>- 
sas,  483,  to  the  effect  that  the  courts  of  a  sister  State  may  di> 
solve  a  marriage  relation  between  a  husband  domiciled  there. 
and  a  wife  domiciled  in  Kansas,  by  publication,  although  un- 
known to  her;  but  that  such  courts  have  no  power  to  settle 
the  title  of  lands  in  Kansas  or  control  the  custody  of  children 
residing  there.  But  it  was  also  decided  in  < '/minium  v.  CJm/>- 
iiniii.  -Is  Kansas,  636,  that  a  wife  having  obtained  a  divorce  in 
Ohio  upon  service  by  publication,  was  not  entitled  to  dower  in 
lands  in  Kansas  fraudulently  conveyed  by  her  husband  in 
fraud  of  her  or  others. 

In  Smith  v.  Smith.  -I:',  La.  Ann.  1140.  it  is  held  that  a  wife 
may  acquire  a  separate  domicil  from  that  of  her  husband 
where  his  conduct  has  been  such  as  to  furnish  ground  for  di- 
vorce, and  her  marriage  .v/<r///.v  becomes  subject  to  the  juris 
diction  of  that  domicil,  and  that  the  courts  thereof  may  grant 
a  divorce  upon  actual  or  constructive  notice.  The  rights  of 
the  Louisiana  courts  to  decree  a  divorce  against  an  absentee 
by  means  of  substituted  service  is  again  affirmed  in  llnth-r  v. 
\Vnxhiniiton-.  4."i  La.  .Ann.  £79. 

565 


APPENDIX 

The  law  of  Wisconsin  is  the  same.  Shafer  v.  Busknell,  24 
Wiscon/sjn,  372;  Cook  v.  Cooky  56  Wisconsin,  195,  though  in 
the  latter  case  the  right  of  the  wife  to  an  interest  in  her  hus- 
band's lands  in  Wisconsin  was  preserved. 

In  Thompson  v.  State,  28  Alabama,  12,  the  right  of  the  hus- 
band to  emigrate  and  acquire  a  new  domicil  and  procure  a 
divorce  uppn  publication  in  the  State  of  his  domicil,  was  also 
affirmed.  See  also  Turner  v.  Turner,  44  Alabama,  437.  In 
the  latter  case  it  is  indicated  that  a  foreign  divorce  did  not 
settle  the  rights  of  the  wife  to  dower  in  his  lands,  or  any  other 
interests  of  a  pecuniary  character. 

In  Kline  v.  Kline,  57  Iowa,  386,  a  decree  rendered  in  an- 
other State  on  service  by  publication  was  recognized,  except 
so  far  as  it  attempted  to  fix  the  custody  of  the  minor  children. 
In  Van  Orsdal  v.  Van  Orsdal,  67  Iowa,  35,  the  property  rights 
of  the  wife  were  recognized,  but  this  right  was  limited  to 
property  within  the  State,  and  which  the  husband  owned  at 
the  time  of  the  divorce,  and  not  to  what  he  subsequently  ac- 
quired. In  this  case  it  was  said :  "'The  divorce  was  granted 
...  in  May,  1880.  In  November,  1881,  the  defendant's 
father  died  in  this  State,  possessed  of  certain  property  which 
the  defendant  inherited.  Now,  while  it  may  be  that  the 
plaintiff  might  be  entitled  to  alimony  if  the  defendant  had 
owned  property  in  the  State  at  the  time  the  divorce  was  pro- 
•cured  in  Nebraska,  she  cannot  be  so  entitled  because  he  has 
subsequently  acquired  property.  The  plaintiff,  if  entitled  to 
alimony,  was  so  entitled  at  the  time  the  divorce  was  granted. 
The  relation  of  husband  and  wife  then  ceased,  and  neither 
party  is  entitled  to  any  share  or  interest  in  property  which 
may  be  subsequently  acquired." 

In  Indiana  the  right  of  a  wife  domiciled  there  to  a  clivorc." 
against  thfe  husband  who  never  resided  in  that  State,  and 
upon  whom  ^service  was  only  obtained  by  publication,  is  recog- 
nized in  Tolen  v.  Tolen,  2  Blackford,  407;  Hood  \.  State,  56 
Indiana,  263,  and  in  Hilbisli  v.  Hattle,  145  Indiana,  59,  it  was 
held  that  the  wife  had  no  rights  in  his  property  by  virtue  of 
her  marriage  relations  with  the  husband,  though  the  court  did 
not  in  the  divorce  proceedings  adjudicate  the  property  rights, 
of  the  parties. 

In  Garner  v.  Garner,  56  Maryland,  127,  the  power  to  grant 
a  divorce  against  a  non-resident,  upon  whom  process  had  not 

566 


MAIUMM'K     V. 

been  served,  was  rei ognized,  but  the  right  to  ;i  decree  that  the 
iimi  resident    should   not  marry  again   \v;is  denied. 

In  Thurxton  v.  Thurxtnn,  ."»S  Minnesota,  L'7'.i.  the  divorce  was 
recognized,  though  process  was  served  on i side  of  the  State. 
But  ii  \v;is  held  that  the  question  of  alimony  was  not  res  ad- 
/iiilifdln  by  reason  of  the  judgment.  The  wife  was  allowed 
alimony  out  of  property  ill  Minnesota. 

The  validity  of  foreign  divorces  obtained  without  personal 
service  is  recogni/.ed  in  Illinois,  in  h'nnirllnii  v.  l\  nnirltnii.  !.".."> 
Illinoi>,  l.'.s,  ;1iid  in  Dnnluini  \.  Dniilnmi.  Hii'  Illinois,  589. 

Tlie  law  in  New  -lersey  appeared  at  one  time  to  favor  the 
•contention  of  the  wife  in  this  case.  The  i:ist  of  the  decisions 
seemed  to  be  that  a  foreign  decree  js  enforceable  in  another 
State  only  on  the  ground  of  comity.  This  was  indicated  in 
Jtmiiflitif  v.  Dimtjliti/,  L'S  N.  .1.  !•:<).  .".Si.  though  the  derive  in 
that  case  was  held  to  have  been  obtained  by  fraud.  It  was 
admitted  that  the  decree  obtained  by  the  husband  in  Illinois 
was  lawful  and  binding  there,  but  it  was  held  that  it  did  not 
change  the  status  of  the  wife  in  New  Jersey,  her  citizenship 
there  being  admitted.  The  case  was  properly  decided  on  the 
ground  that  the  husband  went  to  Illinois  to  obtain  a  divorce. 
and  acquired  no  bona  fide  domicil  there.  The  same  rule  was 
recognized  in  Flower  V.  Finn-,,-.  r_'  N.  .1.  Kq.  1.">L'.  These  < 
however,  seem  to  have  been  overruled  in  /•'<//  v.  /'»//.  .V.i  N.  .1. 
Ki|.  »',iMi.  where  it  was  held  that  the  domicil  of  the  complain- 
ant in  a  foreign  State  was  sufficient  t<>  give  jurisdiction,  not- 
withstanding the  defendant  had  not  been  served  with  process 
there.  The  court  remarked  in  this  case:  "A  condition  of  the 
law  which  makes  the  intercourse  of  a  man  and  woman  either 
legitimate  or  adulterous  as  they  happen  to  be  within  the 
limits  of  one  State  or  another  is  not  to  be  tolerated  any  fur- 
ther than  is  plainly  required  by  public  policy."  This  case 
evidently  puts  New  .lersey  in  line  with  the  vast  majority  of 
other  States. 

The  cases  of  New  York  upon  this  subject  are  numerous  and 
perhaps  not  wholly  reconcilable,  but  we  think  that  the  law, 
as  summarized  in  the  last  case  of  U"///.v/o//  v.  \Vinxtnn.  l»;r.  N. 
V.  .">:::'..  is  adverse  to  the  validity  of  a  divorce  obtained  in  an- 
other State  without  service  of  process  within  the  jurisdiction. 
Of  the  same  tenor  are  the  cases  in  Pennsylvania:  Culrin  v. 
Reed,  .".."»  Pa.  St.  ::7.~>:  //»•»•/  \.  i;i,i«-.  i;i!  Pa.  St.  :;us.  North 
Carolina:  Irby  v.  Wil*<>n.  1  l>ev.  &  Hat.  Kq.  r»»5S;  /////•/•/*  \. 

567 


APPENDIX 

Harris,  115  X.  Car.  587.  South  Carolina :  McGreery  v.  Dams, 
44  S.  Car.  105. 

The  law  in  this  country  then  may  be  summarized  as  follows  r 
In  Maine,  Massachusetts,  Bhode  Island,  Kentucky,  Califor- 
nia, Tennessee,  Ohio,  Missouri,  Kansas,  Louisana,  Wisconsin, 
Alabama,  Iowa,  Indiana,  Maryland,  Minnesota,  Illinois  and 
New  Jersey,  the  validity  of  a  divorce  obtained  in  another 
State  by  a  party  there  domiciled  in  a  proceeding  where  con- 
structive service  upon  the  defendant  only  is  obtained,  is  fully- 
recognized.  In  Ohio,  Iowa  and  Minnesota,  and  perhaps  also 
Louisiana  and  Alabama,  her  right  to  alimony  and  to  dower 
is  preserved.  But  the  very  cases  which  limit  the  effect  of  the 
divorce,  so  far  as  property  rights  are  concerned,  restrict  such 
rights  to  dower  in  lands  of  which  the  husband  was  seized 
during  coverture,  and  inferentially  at  least  to  alimony  from 
such  property.  It  is  also  limited  to  property  within  the 
State  where  suit  is  brought.  That  her  rights  in  her  husband'* 
property  should  extend  to  property  acquired  by  him  long 
after  the  divorce  is  nowhere  indicated. 

The  only  States  in  which  it  is  held  that  a  party  domiciled 
in  another  State  may  not  obtain  a  divorce  there  by  construc- 
tive service  are  New  York,  Pennsylvania,  North  and  South 
Carolina. 

A  proceeding  for  divorce  is  a  suit  in  rem,  with  which  is 
often  incorporated  a  suit  in  personam.  The  res  is  aptly  stated 
in  Illis  v.  Martin,  53  Missouri,  575,  as  "the  status  of  the  plain- 
tiff in  relation  to  the  defendant  to  be  acted  on  by  the  court. 
This  relation  being  before  the  court  in  the  person  of  the  plain- 
tiff, the  court  acts  on  it,  and  dissolves  it  by  a  judgment  of 
divorce."  The  fact  subsequently  ascertained,  that  it  may  have 
been  procured  by  fraud  or  false  testimony,  is  wholly  beside 
the  question,  as  we  shall  hereafter  show.  The  fact  that  the 
husband  changed  his  domicil  to  another  State,  after  the 
cause  of  action  arose,  is  also  immaterial.  The  status  of  the 
husband  in  this  case  was  irrevocably  fixed  by  the  decree.  It 
is  unnecessary  to  consider  how  far  it  affected  the  status  of 
the  wife  in  New  York,  which,  in  respect  to  other  questions, 
may  be  subject  to  the  local  law;  but  her  relations  as  against 
her  husband  are  controlled  by  the  decree  which  fixed  his 
status.  Indeed,  it  would  be  a  reproach  to  our  jurisprudence 
if  an  injured  party  residing  in  one  State  could  not  obtain  a 
decree  from  the  other  party,  without  pursuing  the  offending. 

568 


IIAI.IiOCK     \.     HAMMM'K 

party   ihin   another  and   distant   State,  where  lie  or  she  may 
h;i\e   chosen    io   est;il»lisli   a  domicil. 

lii  thiv  ,-ase  ill.-  P'leree  reported  that  the  defendant  aban 
doned  the  plaintiff  without  cause  or  jnsiiiic.-n  ion.  An  excep- 
tion was  taken  to  this  report,  and  the  testimony  was  sent  up. 
which  shows  that  the  parties  separated  on  the  day  of  their 
marriage  and  have  never  lived  together  since.  The  testimony 
leave-,  it  doubtful  whether  it  was  a  case  of  abandonment  or 
<.t  -eparation  l>y  mutual  consent.  It  does,  however,  sliow  that 
plaintiff  took  no  steps  to  assert  her  martial  rights  for  twenty 
six  years  after  her  marriage.  Her  husband  having  in  the 
meantime  inherited  a  large  amount  of  property  from  his 
father,  she  began  suit  for  divorce  a  mensa  et  tli<»-»  ami  an 
allowance  of  alimony.  This  suit,  however,  was  ineffectual  so 
far  as  respects  the  alimony,  as' no  personal  service  was  ob- 
lained.  She  wailed  again  for  five  years  and  began  this  pro- 
ceeding both  for  a  separation,  which  she  had  already  obtained, 
and  for  alimony. 

We  think  the  defendant  may  lawfully  reply  thus:  "Von  are 
pursuing  me  as  your  husband  for  a  separation  ilr  jtirr  which 
hns  existed  for  thirty-one  years  rf<?  facto,  and  since  is'.M  <!•• 
inrr.  and  for  an  alimony  which  is  obviously  the  sole  object  of 
your  proceeding.  Your  only  claim  against  me  is  as  your 
husband.  I  am  not  your  husband.  Twenty-three  years  ago 
the  Superior  Court  of  Litchfield  County,  Connecticut,  in  which 
State  I  had  an  actual  and  bona  fide  domicil.  ami  which  had 
had  sole  jurisdiction  over  my  marital  status  for  twelve  years, 
li Iterated  me  from  the  bonds  of  matrimony  and  pronounced 
me  a  free  man.  In  the  meantime  I  have  married  another 
woman,  and  if  your  position  be  a  sound  one.  I  am.  at.  least 
in  the  State  of  New  York,  a  bigamist,  ami  my  wife  an 
adulteress."  It  is  difficult  to  conceive  of  a  case  calling  more 
loudly  for  the  application  of  the  general  doctrine. 

As  no  question  is  made  as  to  the  validity  of  the  Connecticut 
decree  and  its  legal  effect  in  that  Slate,  and  as  this  court  has 
repeatedly  decided  thai,  under  the  full  faith  and  credit  clause 
of  the  Constitution,  a  judgment  conclusive  in  the  State  where 
it  is  rendered  Is  equally  conclusive  everywhere  in  the  courts 
of  the  Fnited  States.  Okeever  \.  Wilton,  !•  Wall.  los:  i//7/x 
\  Itiiri/rr,  7  ('ranch.  4S1  ;  D'Arcy  \.  Krtrluini.  11  How.  lt'..~».  I 
do  not  understand  how  this  decree  can  be  denied  the  same 
•  •Heel  in  New  York  that  it  has  in  Connecticut  without  disiv 

569 


APPENDIX 

garding  the  constitutional  provision  in  question.  The  result 
is  that  the  husband,  freed  from  the  bonds  of  matrimony  in 
Connecticut,  was  at  liberty  to  contract  another  marriage 
there,  while  the  wife  cannot  even  at  this  late  day  contract  an- 
other marriage  in  New  York  without  being  guilty  of  adultery. 
3.  It  is  insisted,  however,  that  the  decree  of  the  Connecti- 
cut court  was  obtained  by  the  fraud  of  Haddock,  in  stating  in 
his  complaint  that  his  wife  had  deserted  him,  when,  in  the 
present  case,  it  appears  from  his  own  testimony  that  he,  in 
fact,  abandoned,  and  refused  Jo  live  with"  her,  or  that  they 
separated  bv  mutual  consent. 

* 

The  evidence  upon  which  the  Connecticut  decree  was  grant- 
ed does  not  appear  in  the  record,  and  it  is  possible  that  the 
case  was  made  out  by  the  testimony  of  other  witnesses.  But, 
however  that  may  be,  this  decree  cannot  be  impeached  by 
evidence  that  it  was  obtained  by  false  testimony,  even  though 
it  be  testimony  of  the  plaintiff  in  that  proceeding  and  the  de- 
fendant in  this.  Hood  v.  Hood,  11  Allen,  196,  in  which  it  was 
held  that  "both  parties  had  their  domicil  in  that  State  [Illi- 
nois], and  were  subject  to  the  jurisdiction  of  the  court  in 
which  the  libel  was  filed.  .  .  .  But  the  fact  of  desertion 
[by  the  wife]  was  conclusively  settled  between  the  parties  by 
the  judgment  in  Illinois ;  and  it  is  not  now  competent  for  the 
libellant  to  contradict  that  judgment."  See  same^case,  110 
Massachusetts,  463. 

The  rule  is  well  settled  that  while  a  judgment  or  decree  may 
sometimes  be  impeached  for  fraud,  it  can  only  be  for  a  fraud 
extrinsic  to  the  cause — as,  that  the  judgment  was  collusively 
obtained  to  defraud  some  other  person,  and  that  it  cannot  be 
impeached  by  either  of  the  parties  thereto  by  reason  of  false 
testimony  given  at  the  time,  or  which  must  have  been  given 
to  establish  the  plaintiff's  case,  or  even  by  perjury  of  one  of 
the  parties  thereto.  Granting  that  the  testimony  shows  the 
absence  of  good  faith,  and  even  perjury,  on  the  part  of  the 
husband  in  the  Connecticut,  suit,  the  decree  cannot  be  opened 
for  that  reason,  or  for  any  reason,  which  would  not  logically 
involve-  a  reexamination  of  the  entire  facts  upon  which  the 
decree  is  obtained.  Christmas  v.  Russell,  5  Wall.  290 ;  United 
States  v.  Throckm&fton,  98  U.  S.  61 ;  Sims  v.  Slocum,  3  Cranch. 
300;  Ammidon  v.  Smith,  1  Wheat.  447;  Smith  v.  Lewis,  3" 
Johns.  ]57;  Marriott  v.  Hampton,  1  T.  R.  269;  Demerit 
\.  l,irfora,  7  Foster,  514,  546;  Peck  v.  Woodbridge,  3  Day,  30; 

570 


\.     IIAIHio.-K 


v.  Murray,  6  Indiana  324;  Homer  v.  /'/*//.  1  l'i«-k.  j::r.  : 
v.  //of/o-.v.  |i;  I'M.  St.  18;  Sidensparkrr  \.  N  /Wo/.  s-/^/  /•/.•*  r. 
.">!'  Maine.  1S1  ;  It.  a  II.  A*.  #.  Company  v.  N/>«;7wt0fc,  1  Allen, 
ll>:  niini/tort  v.  Xi/mimon,  Croke,  Eliz'bth,  520;  #j/re«  v. 
snli/irirkf,  (Yoke.  .lames.  (101;  Mason  v.  Messenger,'Vl  Iowa. 
L'lil.  I'TU:  U7*/7r  r.  Mrrritt,  7  N.  Y.  :',:•:.'. 

When  it  is  considered  that  the  status  of  the  defendani  W&6 
tixed  by  the  decree  of  the  Connecticut  court  in  1SS1,  in  a  pro- 
cc<Mlin«r  of  wliicli  his  wife  had  due  notice,  ilmi  u|'«»n  iin-  t'aitli 
of  this  decree  he  iviimrried  the  following  ye;ii-.  ami  that  1  1n- 
plain!  ill  ma<lc  no  move  to  establish  her  conjugal  rights  I'm- 
thirifcn  \cai-s  thereafter,  and  for  twenty  six  years  after  her 
marriajre.  the  injustice  of  holding  all  these  proceedings  to  be 
null  and  void,  even  upon  the  assumption  of  perjury  committed 
l>y  the  defendant,  becomes  the  more  manifest.  We  think  that 
at  least  the  record  should  have  been  received. 

I  regret  that  the  court  in  this  case  has  taken  what  seems  to 
me  a  step  backward  in  American  jurisprudence,  and  has  vir- 
tually returned  to  the  old  doctrine  of  comity,  which  it  was 
the  very  object  of  the  full  faith  and  credit  clause  of  the  Con- 
stitution to  supersede. 

.Mi:.  JUSTICE  HOLMES,  with  whom  concurred  Mi:.  JUSTICE 
HARLAN,  MR.  JUSTICE  BREWER  and  MR.  JUSTICE  BROWN,  dis- 

senting. 

I  do  not  suppose  that  civilization  will  come  to  an  end 
whichever  way  this  case  is  decided.  l!ui  as  the  reasoning 
which  prevails  ^u  the  mind  of  the  majority  does  not  convince 
me.  and  as  T  think  that  the  decision  not  only  reverses  a 
previous  well  considered  decision  of  this  court  hut  is  likely  to 
cause  considerable  disaster  to  innocent  persons  and  to  l»a> 
tardi/.e  children  hitherto  supposed  to  be  the  offspring  of  law- 
ful marriage.  I  think  it  proper  to  express  my  views.  Gen- 
erally stated,  the  issue  is  whether,  when  a  husband  sues  in 
the  «.urt  of  hi*  domicil  for  divorce  from  an  absent  wife  on 
the  ground  of  her  desertion,  the  jurisdiction  of  the  court. 
if  there  iv  no  personal  service,  depends  upon  the  merits  of  the 
case.  If  the  wife  did  desert  her  husband  in  fact,  or  if  she 
was  served  with  process.  I  understand  it  not  to  be  disputed 
that  a  decree  of  divorce  in  the  case  supposed  would  be  con 
elusive,  and  so  I  understand  it  to  be  admitted  thai  if  the 

571 


APPENDIX 

court  of  another  State  on  a  retrial  of  the  merits  finds  them 
to  nave  been  decided  rightly  its  duty  will  be  to  declare  the 
decree  a  bar  to  its  inquiry.  The  first  form  of  the  question 
is  whether  it  has  a  right  to  inquire  into  the  merits  at  all. 
But  I  think  that  it  will  appear  directly  that  the  issue  is  nar- 
rower even  than  that. 

In  Afherton  v.  Afherton,  181  U.  S.  155,  a  divorce  was  grant- 
ed, on  the  ground  of  desertion,  to  a  husband  in  Kentucky 
against  a  wife  who  had  established  herself  in  New  York.  She 
did  not  appear  in  the  suit  and  the  only  notice  to  her  was  by 
mail.  Before  the  decree  was  made  she  sued  in  New  York 
for  a  divorce  from  bed  and  board,  but  pending  the  latter  pro- 
ceedings the  Kentucky  suit  was  brought  to  its  end.  The 
husband  appeared  in  New  York  and  set  up  the  Kentucky  de- 
cree. The  New  York  court  found  that  the  wife  left  her  hus- 
band because  of  his  cruel  and  abusive  treatment,  without 
fault  on  her  part,  held  that  the  Kentucky  decree  was  no  bar 
and  granted  the  wife  her  divorce  from  bed  and  board.  The 
New  York  decree,  after  being  affirmed  by  the  Court  of  Ap- 
peals, was  reversed  by  this  court  on  the  ground  that  it  did 
not  give  to  the  Kentucky  decree  the  faith  and  credit  which 
it  had  by  law  in  Kentucky.  Of  course,  if  the  wife  left  her 
husband  because  of  his  cruelty  and  without  fault  on  her  part, 
as  found  by  the  New  York  court,  she  was  not  guilty  of  deser- 
tion. Yet  this  court  held  that  the  question  of  her  desertion 
was  not  open  but  was  conclusively  settled  by  the  Kentucky 
decree. 

There  is  no  difference,  so  far  as  I  can  see,  between  Atherton 
v.  Atherton  and  the  present  case,  except  that  in  Atherton  v.- 
Atherton  the  foruiri  of  the  first  decree  was  that  of  the  matrimo- 
nial domicil,  whereas  in  this  the  court  was  that  of  a  domicil 
afterwards  acquired.  After  that  decision  any  general  objec- 
tion to  the  effect  of  the  Connecticut  decree  on  the  ground  of 
the  wife's  absence  from  the  State  comes  too  late.  So  does  any 
general  objection  on  the  ground  that  to  give  it  effect  invites  a 
race  of  diligence.  I  therefore  pass  such  arguments  without 
discussion,  although  they  seem  to  me  easy  to  answer.  More- 
over, Atherton  v.  Atherton  decides  that  the  jurisdiction  of  the 
matrimonial  domicil,  at  least,  to  grant  a  divorce  for  the  wife's 
desertion  without  personal  service,  does  not  depend  upon  the 
fact  of  her  desertion,  birt  continues  even  if  her  husband's 
cruelty  has  driven  her  out  of  the  State  and  she  has  acquired  a 

572 


V.     HADDOCK 

separate  domicil  elsewhere  upon  the  principles  which  we  all 
a^i-cc  are  recogni/ed  by  this  court. 

I  can  se<>  no  ground  for  giving  a  less  effect  lo  the  decree 
when  the  husband  changes  his  domicil  after  the  >cpara  t  ion 
has  taken  place.  The  <|uestion  whether  such  a  decree  shouhj 
have  a  less  elVeet  is  the  only  (|iiestion  open,  aixl  the  -issue  is 
narrowed  to  that.  No  one  denies  that  the  husband  may  -m- 
for  divorce  in  his  new  domicil.  or,  as  F  have  said,  that  if  he 
a  decree  when  he  really  has  been  deserted,  it  will  he 
binding  everywhere,  llun-kin*  v.  l{(i<i*'l<tl' .  ^  Keniuckv.  :::.::. 
cited  1S1  g,  S.  162.  C7»rr/.//  v.  I'ltii/ton,  110  U.  8.  "of.  Tor,. 
Ii  is  unnecessary  to  add  more  cases.  The  only  reason  which 
I  have  heard  slices  ted  for  holding  the  decree  not  binding  as 
to  the  fact  that  he  was  deserted,  is  that  if  lie  is  deserted  his 
power  over  the  matrimonial  domicil  remains  so  thai  the 
domicil  of  the  wife  accompanies  him  wherever  he  goes,  where- 
as if  he  is  the  deserter  he  has  no  such  power.  <>f  course  this 
is  a  (Mire  tiction,  and  lict ion  always  is  a  ]M>or  ground  for 
chan-iiiiii  rights.  It  seems  to  me  also  an  inadequate  tiction, 
since  by  the  same  principle,  if  he  deserts  her  in  the  matrimo- 
nial domicil,  he  is  equally  powerless  to  keep  her  domicil  there, 
if  she  moves  into  another  State.  The  truth  is  that  jurisdic- 
tion no  more  depends  upon  both  parties  having  their  domicil 
within  the  State,  than  it  does  upon  the  presence  of  the  defend- 
ant there,  as  is  shown  not  only  by  Atlvertnn  v.  Atln'rtnn.  but 
by  the  rights  of  the  wife  in  the  matrimonial  domicil  when  the 
husband  deserts. 

There  is  no  question  that  a  husband  may  establish  a  new 
domicil  for  himself,  even  if  he  has  deserted  his  wife.  Vet  in 
these  days  of  equality  I  do  not  suppose  that  it  would  be 
doubted  that  the  jurisdiction  of  the  court  of  the  matrimonial 
domicil  to  grant  a  divorce  for  the  desertion  remained  for  her. 
as  it  would  for  him  in  the  converse  case.  See  Chcrrcr  v.  \Vil- 
xw,!!  Wall.  10S.  Indeed  in  Itilxnn  v.  IHI.*m.  I  \i.  I.  ^7.  which, 
after  a  quotation  of  .Judge  Cooley's  praise  of  it.  is  slated  and 
relied  upon  as  one  of  the  pillars  for  the  decision  of  .\tlnrtnn 
\.  I  tin  /•/'///.  a  wife  was  granted  a  divorce,  without  personal 
service,  in  the  State  of  a  domicil  acquired  by  her  after  separa- 
tion, on  the  sole  Around  that  in  the  opinion  of  the  court  its 
decree  would  he  binding  everywhere.  If  that  is  the  law  it 
disposes  of  the  case  of  a  husband  under  similar  circumstan.  e>. 
that  is  io  say  of  the  present  case,  a  fortiori;  for  1  supi>ose 

575 


APPENDIX 

that  the  notion  that  a  wife  can  have  a  separate  domicil  from 
her  husband  is  a  modern  idea.  At  least  Ditson  v.  Ditson, 
confirms  the  assumption  that 'jurisdiction  is  not  dependent 
on  the  wife's  actually  residing  in  the  same  State  as  her.  hus- 
band, which  has  been  established  by  this  court.  Atherton  v. 
Atherton,  181  U.  S.  155;  Maynwd  v.  Hill,  125  U.  S.  190; 
Cheever  v.  Wilson,  9  Wall.  108.  When  that  assumption  is  out 
of  the  way,  I  repeat  that  I  cannot  see  any  ground  for  dis- 
tinguishing between  the  extent  of  jurisdiction  in  the  matrimo- 
nial domicil  and  that,  admitted  to  exist  to  sonffe  extent,  in  a 
domicil  later  acquired.  I  also  repeat  and  emphasize  that  if 
the  finding  of  a  second  court,  contrary  to  the  decree,  that  the 
husband  was  the  deserter,  destroys  the  jurisdiction  in  the 
later  acquired  domicil  because  the  domicil  of  the  wife  does 
not  follow  his,  the  same  fact  ought  to  destroy  the  jurisdic- 
tion in  the  matrimonial  domicil  if  in  consequence  of  her 
husband's  conduct  the  wife  has  left  the  State.  But  Atherton 
v.  Atherton  decides  that  it  does  not. 

It  is  important  to  bear  in  mind  that  the  present  decision 
purposts  to  respect  and  not  to  overrule  Atherton  \.  Atherton. 
For  that  .reason,  among  others,  I  spend  no  time  in  justifying 
that  case.  And  yet  it  appears  to  me  that  the  whole  argument 
which  -prevails  with  the  majority  of  the  court  is  simply  an 
argument  that  Atherton  v.  Atficrton  is  wrong.  I  have  tried 
in  vain  to  discover  anything  tending  to  show  a  distinction 
between  that  case  and  this.  It  is  true  that  in  Atherton  v. 
Atherton,  Mr.  Justice  Gray  confined  the  decision  to  the  case 
before  the  court.  Evidently,  I  should  say,  from  internal  evi- 
dence, in  deference  to  scruples  which  he  did  not  share.  But 
a  qourt  by  announcing.that  its  decision  is  confined  to  the  facts 
before  it  does  not  decide  in  advance  that  logic  will  not  drive 
it  further  when  new  facts  arise.  New  facts  have  arisen.  I 
state  what  logic  seems  to  me  to  require  if  that  case  is  to 
stand,  and  I  think  it  reasonable  to  ask  for  an  articulate  in- 
dication of  how  it  is  to  be  distinguished. 

I  have  heard  it  suggested  that  the  difference  is  one  of  degree. 
I  am  the  last  man  in  the  world  to  quarrel  with  a  distinction 
•simply  because  it  is  one  of  degree.  Most  distinctions,  in  my 
opinion,  are  of  that  sort,  and  are  none  the  worse  for  it.  But 
the  line  which  is  drawn  must  be  justified  by  the  fact  that  it  is 
a  little  nearer  than  the  nearest  opposing  case  to  one  pole  of 
an  admitted  antithesis.  When  a  crime  is  made  burglary  by 

•574 


HAM'orK    V.    H.\IUK)CK 

the  fact  ili;ii  ii  \v;is  committed  lliirty  seconds  after  HIM*  hour 
after  sunset.  ascertained  according  to  mean  time  in  the  place 
of  the  act.  to  take  ;ill  example  from  Massachusetts  ill.  I.,  c. 
I'll).  S  Hh.  tin-  .-ict  is  a  little  nearer  to  midnight  tli:in  if  it  h;nl 
been  committed  one  iniinite  earlier,  :iml  no  one  <lenies  th;it 
there  is  ;i  difference  between  night  :ind  day.  The  fixing  of  a 
jioint  when  day  ends  is  made  inevitable  by  the  admission  of 
that  difference.  Bin  I  can  lind  no  basis  for  giving  a  greater 
jurisdiction  to  the  courts  of  the  husband's  doinicil  when  the 
married  pair  happens  to  have  resided  there  for  a  mouth.  e\en 
if  \\iih  intent  to  make  it  a  permanent  abode,  than  if  they 
had  not  lived  there  at  all. 

I  may  add.  as  a  consideration  distinct  from  those  which  I 
have  urged,  that  I  am  unable  to  reconcile  with  the  require 
nients  of  the  Constitution.  Article  4,  section  1,  the  notion  of 
a  judgment  being  valid  and  binding  in  the  State  where  it  is 
rendered,  and  yet  depending  for  recognition  to  the  same  ex- 
tent in  other  States  of  the  I'nion  upon  the  comity  of  those 
States.  No  doubt  some  color  for  such  a  notion  may  he  found 
in  state  decisions.  State  courts  do  not  always  have  the  Con- 
stitution of  the  I'liiled  Stales  vividly  present  to  their  minds. 
I  am  responsible  for  language  treating  what  seems  to  me  the 
fallacy  as  open,  in  lil<t<-kiiit(nt  v.  Blackfaton,  141  Massa- 
chusetts, 4.".:!.  4:>r>.  But  there  is  no  exception  in  the  words  of 
the  Constitution.  "If  the  judgment  is  conclusive  in  the  State 
where  it  was  pronounced  it  is  equally  conclusive  everywhere." 
ChrixtitKix  v.  Ifiiwll,  .">  Wall.  L".M|.  Marshall.  C.  .1..  in  Hamil- 
ton v.  McCoiimL  '•'•  Wheat.  234;  Mills  v.  Duri/n  ,  7  Cranch, 
IH.  lv",:  Story.  Const.  §  i:!i:',.  See  also  Ifnnrork  \utioiuii 
Haul-  v.  l-'iinnnii.  17C  I*.  S.  IUO.  r.ll.  «;»."•.  I  tind  no  <|iialitica- 
tion  of  the  rule  in  I J'm-o //*///  \.  I'rlirim  ///.v.  ('».,  lL'7  1".  S.  •_'»;."». 
That  merely  decided,  with  regard  to  a  case  not  within  the 
words  of  the  Constitution,  tluit  a  state  judgment  could  not  be 
sued  upon  when  the  facts  which  it  established  were  not  a 
cause  dl  action  outside  the  Stale.  It  did  not  decide  or  e\  en 
remotely  suggest  that  the  judgment  would  not  be  conclusive 
a^  to  the  facts  if  in  any  way  those  facts  came  in  question. 
It  is  decided  a*  well  as  admitted  that  a  decree  like  that  ren- 
deie<Hn  Connecticut  in  favor  of  a  deserting  h'usband  is  bind- 
ing in  the  State  where  it  is  rendered.  Mai/mini  v.  /////.  IL'.~ 
I".  S.  1!MI.  I  think  it  enough  to  read  that  case  in  order  to  ">•• 
convinced  that  at  that  time  the  court  had  not  thought  of  the 

575 


APPENDIX 


divorce  being  confined  in  its  effects  to  the  Territory  where  it 
was  granted,  and  enough  to  read  Athertoii  \.  AtJierton  to  see 
that  its  whole  drift  and  tendency  now  are  reversed  and  its 
necessary  consequences  denied. 


576 


TABLE  OF  CASES. 


Abbott   v.  Abbott,  p.  144 

Abel,  Knapp  v.,  p.  27 

Adair  v.  Mette,  p.  21 

Adams  v.  Adams,  pp.  160,  177,  183 

Adams  v.  Brockett,  p.  126 

Adams  v.  Champion,  p.  374 

Adams  v.  Circuit  Judge,  p.  297 

Adams  v.  Field,  p.  376 

Adams  v.  Judge,  p.  297 

Adams  v.  Palmer,  p.  154 

Adams  v.  Seibly,  p.  254 

Adams  v.  Story,  p.  247 

Adams,  Woodruff  Iron  Wks.  v.,  p. 

131 

Adkins  v.  Holmes,  p.  16 
Agneau  v.  Brooklyn,  p.  338 
Ahlefeldt,  p.  26 
Ainger,  Ewing  v.,  p.  376 
Airth,  Emery  v.,  p.  302 
Alaska   &c.   Commercial   Co.,   Mc- 

Curdy  v.,  p.  28 
Albrecht,  Matter  of,  p.  82 
Albright,  People  v.,  p.  281 
Alcott,  Glover  v.,  pp.  77,  127 
Alden,  Harding  v.,  pp.  34,  35,  161 
Aldrich  v.  Aldrich,  p.  254 
Algood  v.  Williams,  p.  161 
Allen,  Cross  v.,  p.  6 
Allen,  Simmonds  v.,  p.  14 
Allen,  Thorp  v.,  p.  108 
Allen  v.  Allen,  pp.  81,  253 
Allen  v.  Crane,  p  .118 
Alston  v.  Newcomer,  p.  161 
Amazon  Ins.  Co.,  Hebel  v.,  p.  297 
Amperse,   Burdeno  v.,   pp.   75,  80, 

137 
Amphlett  v.  Hibbard,  pp.  108,  110, 

115 

Anderson,  Burton  v.,  p.  29 
Anderson.  Muslon  v.,xpp.  243,  254 
Anderson  v.  Odell,  p.  112 
Andrews,  Newcomb  v.,  p.  131 


Andrews,  Wright  v.,  p.  27 
Andrews  v.  Andrews,  pp.  164,  165, 

175,  259 

Angel,  Chase  v.,  p.  104 
Anonymous,  p.  206 
Anshutz  v.  Anshutz,  p.  215 
Anthony  v.  Rice,  p.  35 
Anti  Kalsomine  Co.,  Church  v.,  p. 

327 

Armitage  v.  Toll,  p.  112 
Arndt  v.  Arndt,  p.  25 
Arndt  v.  Bourke,  p.  300 
Arnold  v.  Bright,  p.  374 
Arnold  v.  Nye,  p.  297 
Arrington    v.    Arrington,    pp.    33, 

162 

Arrington  v.  Bell,  p.  134 
Arthur  v.  Caverly,  p.  141 
Artmand  v.  Ferguson,  p.  129 
Ashe  v.  Pennier,  p.  147 
Ashland,  Collins  v.,  p.  161 
Askew  v.  Dupree,  p.  21 
Aslanian  v.  Dostumian,  p.  28 
Atcaeson,  Scarpellini  v.,  p.  125 
Atherton  v.   Atherton,   pp.  32,  34, 

41,  161 

Atkinson,  Woolfenden  v.,  p.  76 
Attorney  General  v.  Jochim,  p.  322 
Atwater  v.  Kinman,  p.  305 
Atwell,  N.  Y.  Baptist  Union  v.,  p. 

297 

Auditor  General  v.  Bolt,  p.  372 
Auditor  General  v.  Fisher,  p.  81 
Auditor  General  v.  Hill,  p.  376 
Augustine,  Hull  v.,  p.  27 
Austin  v.  Austin,  p.  228 
Avakian   v.   Avakian,   p.   156 
Averill  v.  Savings  Bank,  p.  118 
Ayer,  Kermott  v..  pp.  27,  28 
Ayres  v.  Wayne  Circuit  Judge,  pp. 

236,    291 


577 


TABLE   OF    CASES   CITED 


Babbitt  v.  Babbitt,  p.  217 

Babcock  v.  Marshall,  p.  26 

Bacon  v.  Bacon,  p.  192 

Bacon  v.  Judge  of  Probate,  p.  97 

Baent  v.  Kennicutt,  p.  300 

Bailey,  Ewing  v.,  p.  336 

Bailey,  Waterman  v.,  pp.  358,  363 

Baily  v.  Baily,  p.  244 

Bainenall,  Van  Voorhis  v.,  p.  263 

Baker,  People  v.,  pp.  38,  39,  252 

Baker,  Robinson  v.,  pp.  88,  111 

Baker  v.   Baker,  p.  175 

Baker  v.  Pierson,  p.  86 

Baldwin,  Hillard  v.,  p.  182 

Baldy,  Beecher  v.,  pp.  105,  106,  110 

Balk,  Harris  v.,  p.  25 

Balsom,  New  Haven  1st  Nat.  Bk. 

v.,  p.  161 

Baltimore  &c.  R.  R.  Co.  v.  McDon- 
ald, p.  26 

Banbury,  Wetmer  v.,  p.  322 
Banco  de  Sonoro  v.  Bankers  Mut. 

Casualty  Co.,  p.  28 
Bandfield    v.    Bandfield,  p.   243 
Banka,  Eubanks  v.,  p.  13 
Bank,  Butcher  v. 
Bankers  Mut.  Casualty  Co.,  Banco 

de  Sonoro  v.,  p.  28 
Bank  of  Commerce  v.  Mayer,  p.  26 
Bank  of  North  America  v.  Wheel- 
er, p.  25 

Bank  v.  Newton,  pp.  76,  134 
Baptiste  v.  DeWolunbrun,  p.  28 
Barber  v.  Barber,  pp.  252,  253 
Barber  v.  Eberle's  Est.,  p.  132 
Barber  v.  Hoover,  p.  133 
Barber  v.  Root,  p.   31 
Barver  v.  Rorabeck,  pp.   106,  108 
Barclay  v.  Commonwealth,  p.  175 
Barkman  v.  Hopkins,  p.  26 
Barnard  v.  Colwell,  p.  374 
Barnes,  Clanton  v.,  p.  138 
Barnes  v.  Barnes,  p.  267 
Barnes  v.  Cuness,  p.  156 
Barnes  v.  Moore  Est.,  p.  145 
Barnes  v.  Powers,  p.  306 
Barney  v.  DeKraft,  p.  38 
Barrett   v.    Scott,    p.    Ill 
Barron,  Parker  v.,  p.  22 
Barren,  Robinson  v.,  p.  91 
Barth  v.  Lines,  p.  76 


Bartlett  v.  Knight,  p.  222 
Barton  v.  Barton,  p.  21 
Barton  v.  Gray,  p.  300 
Bascomb  v.  Bascomb,  pp.  207,  208 
Bassett  v.  Budlong,   p.   80 
Bassett  v.  Shepardson,     pp.     128, 

129 

Batchelder  v.  Batchelder,  p.  219 
Batchelder  v.  Sargent,  p.  134 
Bates  v.  Desenberg,  p.  374 
Bates  v.  Virclette,  p.  28 
Bathrick  v.   Bathrick,  p.   21 
Battle  Creek,  Graves  v.,  p.  371 
Bauer  v.  Bauer,  p.  331 
Bauer  v.  Long,  p.  110 
Baughman  v.  Baughman,  p.  186 
Baugh  v.  Baugh,  pp.  194,  223,  243 
Bavin  v.   Bavin,  p.  259 
Bay  City  Bridge  Co.,  Maxwell  v., 

p.  374 
Bay   County   Circuit  Judge,  Hart- 

ingh  v.,  p,  305 
Beach  v.   Brown,  p.   147 
Beal,  Dickinson  v.,  p.  336 
Beamer,  Vinton  v.,  p.  141 
Bean  v.  Briggs,  p.  28 
Bearinger  v.  Bearinger,  p.  226 
Bear  v.  Heasley,  pp.  33,  222 
Bear  v.  Stahl,  p.  90 
Bebee  v.  Lyle,  p.  91 
Becker  v.  Becker,  p.  163 
Becklenberg    v.    Becklenberg,   pp. 

163,  173 

Bedard  v.  Simons,  p.  368 
Beecher,  Gillespie  v.,  pp.  127,  128 
Beecher  v.  Baldy,  pp.  105,  106,  110 
Beecher  v.  Detroit,  p.  161 
Beekman  v.  Beekman,  p.  171 
Beers,  Cooper  v.,  p.  161 
Begrow  v.  BegroW,  p.  228 
Behrman,  State  v.,  p.  14 
Belgrade,  Camden  v.,  p.  68 
Bell,  Arlington  v.,  p.  134 
Beller  v.  Beller,  pp.  214,  288 
Bell,  State  v.,  p.  15 
Bell  v.  Bell,  p.  32 
Belote,  Needham  v.,  p.  84 
Bemis  v.  Conley,  p.  86 
Bender,  Burrall  v.,  pp.  85,  86 
Benedict  v.  Burman,  p.  89 
Benedict  v.  Crookshank,  p.  374 


578 


'TABLE  OF   CASKB  CITED 


Benefit  Assn.,  Thompson  v.,  p.  ::"" 
Benjamin,   Singer  Mfg.  Co.   v.,   p. 

374 

Bennett,  People  v..  pp.  70,  195 
Bennett  v.  Bennett,  pp.  145,  147, 

200,  212,  227,  228,  235,  287 
Bennett  v.  Rickey,  p.  358 
Bennett  v.  Nichols,  p.  248 
Bennington's  Succession,  p.  38 
Benson  v.  Morgan,  p.  143 
Bentley  v.   Hosmer,  p.  178 
Benton's  Succession,  p.  34 
Berdolt  v.,  Berdolt,  p.  207 
Berge,  Morrison  v.,  p.  131 
Berger  v.  Clark,  p.  133      . 
Berger  v.  Jacobs,  pp.  74,  79,  146 
Berry,  Libby  v.,  p.  144 
Besch  v.  Besch,  p.  213 
Betchel  v.  Betchel,  p.  179 
Betser  v.  Betser,  p.  147 
Betts,  Schnabel  v.,  p.  134 
Bialy  v.   Bialy,  p.   246 
Bickford  v.  Bickford,  p.  191 
Bidwell  v.  Bidwell,  pp.  33,  163 
Bigelow,  Cleaver  v.,  p.  108 
Bigelow,  Proctor  v.,  p.  55 
Bingham  v.  Miller,  p.  154 
Birkby  v.  Birkby,  p.  153 
Bishop  v.  Bishop,  pp.  201,  203 
Bixby,  McCleary  v.,  p.  108 
Bizer  v.  Bizer,  p.  219 
Blackburn,  Henry  v.,  p.   134 
Blackburn,  Osburn  v.,  p.  2/7 
Blacks  Case,  p.  25 
Blackstock,  Frolich  v.,  pp.  110,  368 
Black  v.  Black,  p.  201 
Black  v.  Dawson,  p.  371 
Blaisdell  v.  Brickum,  pp.  14,  16 
Blake  v.  Blake,  pp.  201,  202,  204, 

205 

Blake   v.   Dudley,   p.   176 
'Bialy   v.   Bialy,  p.   24:1 
Blanchard,  Brown  v.,  p.  374 
Blanchard  v.  Lambert,  pp.  65,  68 
Blandin  v.   Brooks,   p.   163 
Blaney  v.  Blaney,  p.  219 
Bliss  v.  Probate  Judge,  p.  97 
Blodgett,  Keildsen,  p.  138 
Blondin  v.  Brooks,  p.  190 
Bloss'  Estate.  In  re,  p.  94 
Blue    Earth    County    Court,    St;iu- 

v..  p.  179 
Blumenthall.  Levison  v.,  p.  25 


Boardman,  Taylor  v.,  pp.  79,  343, 

376 

Boettner,  State  v.,  p.  176 
Bolt,  Auditor  General  v.,  p.  372 
Bolton,  Lawrence  v.,  p.  307 
Bonker  v.  People,  pp.  51,  52,  195 
Booker  v.  Wingo,  p.  138 
Bordentown,  State  v.,  p.  160 
Bothane,  New  Home  Sewing  Ma- 
chine Co.  v.,  p.  374 
Botsford  v.  Murphy,  p.  374 
Botts  v.  Knabb,  p.  134 
Bouchard  v.  Bourassa,  p.  106 
Boulden,  Brown  v.,  p.  161 
Bourassa,  Bouchard  v.,  p.  106 
Bourgette  v.  Williams,  p.  375 
Bourke,  Arndt  v.,  p.  300 
Bourne,  Schoenfeld  v.,  p.  296 
Bovee,  Wait  v.,  p.  82 
Bovine  v.  Selden,  p.  116 
Bowen  v.  Bright,  p.  308 
Bowen  v.  Huston,  p.  24 
Bowen  v.  Lansing,  p.  82 
Bowersox  v.  Gitt,  p.  26 
Bowers  v.  Bowers,  p.   16 
Bowler  v.  Hurton,  p.  222 
Bowles  v.  Hoard,  pp.  85,  86,  114. 

246 

Boyer  v.  Diveley,  p.  14 
Boylan,  O'Connor  v.,  p.  117 
Boylan  v.  Deinzer,  p.  16 
Boynton,  Gillam  v.,  p.  128 
Bracken,   McHenry  v.,  p.   14 
Brakett  v.  Norton,  p.  28 
Bradfield  v.  Bradfleld,  pp.  160,  163, 

165,  178,  235 

Bradshaw  v.  Heath,  p.  38 
Branch   v.   Branch,  p.   169 
Brandan  v.  Brandan,  p.  244 
Brasch  v.  Brasch,  pp.  244,  250,  264 
Bray,  Palmer  v.,  p.  117 
Brayson  v.  Brayson,  p.  154 
Brengal  v.  McClellan,  p.  25 
Brewer,  Sheldon  v.,  p.  110 
Brickum,  Blaisdell  v.,  pp.  14,  16 
Bridport,  Nelso  v.,  p.  29 
Brigg  City  of  Erie,  Canfleld  v.,  p. 

364 

Briggs,  Bean  v.,  p.  28 
Briggs  v.  Briggs,  pp.  200.  227,  245, 

291 

Briggs  v.   Rochester,  p.  161 
Brigham.  Dorsey   v.,  p.   173 


579 


TABLE   OF    CASES   CITED' 


Bright,  Arnold  v.,  p.  374 
Bright,  Bowen  v.,  p.   308 
Bright  v.  Com.,  p.  338 
Brimhall  v.  Van  Campne,  p.  28 
Brinsmaid,  Jones  v.,  p.  156 
Briscoe,  Wager  v.,  p.  109 
Brisenden  v.  Chamberlain,  p.  161 
Brockett,  Adams  v.,  p.  126 
Brockins,   U.   S.  v.,  p.  338 
Bronson,  Brown  v.,  pp.  88,  104 
Bronson,  Porchler  v.,  p.  27 
Brooklyn,  Agneau  v.,  p.  338 
Brooks,  Blandin  v.,  p.  163 
Brooks,  Blondin  v.,  p.  190 
Brooks,  Littlefield  v.,  p.  160 
Brook  v.  Brook,  pp.  13,  16 
Brown,  Beach  v.,  p.  147 
Brown,  Fidelity  v.,  p.  185 
Brown,  People  v.,  .p.  49 
Brown,  Smith  v.,  p.  339 
Brown,  State  v.,  pp.  15,  19 
Brown,  Vosburgh  v.,  p.  134 
Brown  v.  Blanchard,  p.   374 
Brown  v.  Boulden,    p.    161 
Brown  v.  Bronson,   pp.   88,   104 
Brown  v.  Brown,  pp.  82,  178,  219, 
231,  238,  254,  264,  289,  318,  321, 
376 

Brovn  v.  Clark,   pp.    84,   274 
Brown  v.  Fifield,  p.  139 
Brown  v.  Fletchers  Est,   p.    243 
Brown  v.  Joiner,  p.  97 
Brown  v.  Kalamazoo  Circuit 

Judge,  p.  330 
Brown  v.  Parker,  p.  26 
Brown  v.  Thompson,  p.  325 
Brunson,  Holmes  v.,  p.  131 
Brush,  Gerardo  v.,  p.  370 
Bryant  v.  Kelton,  p.  29 
Bryne  v.  Gypsum  Plaster  &  Stuc- 
co Co.,  p.  367 
Bucholz  v.  Bucholz,  p.  191 
Buchoz  v.  Walker,  p.  91 
Buckingham,  Tootie  v.,  p.  25 
Buckingham    v.    Buckingham,  pp. 
107,  138 


0 


Cabell  v.  Cabell,  p.  154 
Cadler,  People  v.,  p.  28 
Cadwalader  v.  Howell,  p.  160 
Caille  Bros.  Co.  v.  Saginaw  Circuit 
Judge,  p.  326 


Buckley  &  Douglas  Lumber  Co^ 
Greacen  v.,  p.  300 

Budlington  v.  Munson,  p.  21 

Budlong,  Bassett  v.,  p.  80 

Buford  v.  Buford,  p.  25 

Buhler  v.  Jennings,  p.  128 

Bullock  v.  Bullock,  p.  21 

Bunbury,  Weimer  v.,  243 

Bunker  v.  Paquette,  pp.  107,  108,. 
118 

Burdeno  v.  Amperse,  pp.  75,  80,. 
137 

Burgess  v.  Burgess,  p.  314 

Burgess  v.  Circuit  Judge,  p.  324 

Burgess  v.  Mandell,  p.  325 

Burham,  Benedict  v.,  p.  89 

Burhg  v.  Poupard,  p.  304 

Burke,  Com.  v.,  p.  336 

Burke,  Johnson  v.,  p.  300 

Burkhardt  v.  Walker,  pp.  108,  109- 

Burk  v.  Burk,  p.  202 

Burlage  v.  Burlage,  pp.  225,  226 

Burlin  v.  Shannon,  pp.  161,  162 

Burnham,  Reeg  v.,  p.  376 

Burocher  v.  Degre,  p.  J3 

Burrall  v.  Bender,  pp.  85,  86 

Burr  v.  Burr,  p.  259 

Burt  v.  Burt,  p.  220 

Burt  v.  McBain,  p.  75 

Burt,  Ring  v.,  p.  110 

Burton  v.  Anderson,  p.  29 

Burton,  Spears  v.,  p.  21 

Burtch  v.  McGibbons,  p.  109 

Burtis  v.  Burtis,  p.  206 

Busch  v.  Fisher,  p.  371 

Bush  v.  Com.,  p.  336 

Bushnell,  Shafer  v.,  pp.  35,  38 

Busthman,  Hoffman  v.,  p.  Ill 

Butcher  v.  Bank,  p.  26 

Butcher  v.  Butcher,  p.  91 

Butler,  Whiting  v.,  p.  374 

Byles,  Southern  v.,  p.  290 

Byrne  v.  Gyps\im  Plaster  &  Stuc- 
co "Co.,  p.  362 

Byschlay  v.  Wagoner,  p.  115 


Cairnes  v.  Cairnes,  p.  169 
Caldwell  v.  Jones,  p.  129 
Qalender  v.  Olcott,  p.  294 
Gale  v.  Davis,  p.  171 
California,  Hurtado  v.,  p.  321 


580 


TAISI.K    OF    TASKS 


Calkins.  Cameron  v.,  pp.  358,  363, 

364 

Calla.uhan.  l>arby  v.,  p.  132 
Cambridge.  Pickering  v.,  p.  161 
Cameron,  Sheridan  v.,  p.  109 
Camden  v.  Belgrade,  p.  68 
Cameron    v     Calkins,   p.    358,   363, 

364 

Campbelle,  R.  R.  Co.  v.,  p.  25 
Campbelle  v.  Crampton,  p.  15 
Campbell  v.  Campbell,  pp. '31,  80. 

85 

Campbell  v.  White,  pp.  128,  132 
Campion  v.  Kille,  p.  28 
Camp  v.  Camp,  p.  254 
Canfield  v.  Brigg  City  of  Erie,  p. 

364 

Canfield  v.  Canfield,  p.  228 
Cannaday  v.  Lynch,  p.  337 
Cannon,  Dean  v.,  p.  161 
Ci.mrell,  McVey  v.,  p.  134 
Capital   Ins.   Co.,    Miller   Brewing 

Co.  v.,  p.  25 
Carley  v.  Fox,  p.  128 
fanner  v.  Hubbard,  pp.  370,  371 
Carnahan  v.  Carnahan,  p.  250 
Carney  v.  Gleissner,  p.  144 
Carpenter  v.  Carpenter,  p.  140 
Carpenter  v.  Hood,  p.  303 
Carrale  v.  People,  p.  14 
Carrano,  Ramond  v.,  p.  176 
Carrauthers  v.  Humphrey,  p.  86 
Carroll  v.  Carroll,  p.  65 
Carroll,  Frolich  v..  pp.  109.  131 
Carstens  v.  Hanselman,  p.  76 
Carter  v.   Carter,   p.   188 
Cartwright  v.  Govvan,  p.  63 
Cary  v.  Cary,  p.  183 
Case,  People  v.,  pp.  156,  160 
Case  v.  Case,  pp.  228,  343,  376 
Case  v.  Dewey,  p.  374 
Casey  v.  Casey,  p.  267 
Caton,  Farrand  v..  p.  112 
Caverly,  Arthur  v.,  p.  141 
Cave  v.  Cave,  pp.  202,  203,  204 
Central  Car  Co.,  Dewey  v.,  p.  297 
Central  Mich.  Savings  Bank.  Sher- 
wood v.,  pp.  343,  376 
Chace,  In  re.,  p.  10 
Chace  v.  Chace,  p.  178 
Chadwick.  Port  Huron  v..  p.  374 
Chadwick  v.  Walsh,  p.  374 
Chaffee  v.  Chaffee.  p.  227 


chamberlain,  Brisenden  v.,  p.  161 
chamberlain  v.  Lyell,  p.  110 
Chamber   of   Commerce    v.    Good- 
man, p.  133 

Chambers,  Hill  v.,  pp.  83,  84,  274 
Chambers,  Lake  Shore  &  M.  S.  R. 

R.  Co.  v.,  p.  364 
Chambers  v.  Prince,  pp.  160,  161 
Champion,  Adams  v.,  p.  374 
Chandler  v.  Chandler,  p.  254, 
Chapman,  Clow  v.,  p.  147 
Chapman  v.  Chapman,  pp.  34,  35, 

162 

Chapman  v.  Colby,  p.  28 
Charlotte  v.  Chouteau,  p.  28 
Chase,  Mowry  v.,  p.  27 
Chase  v.  Angel,  p.  104 
Chase  v.  Michigan  United  Ry.  Co., 

p.  370 

Cheever  v.  Wilson,  pp.  33,  162 
Cherry,  Love  v.,  pp.  160,  161 
Chestnut  v.  Chestnut,  p.  144 
Chicago  &  N.  W.  R.  R.  Co.,  Horn 

v.,  p.  27 
Chicago  &  N.  W.  R.  R.  Co.,  Pierce 

v.,  p.  27 
Chicago  &  R.  R.  Co.   v.  Wiggins 

Ferry  Co.,  pp.  26,  27 
Chicago  &  W.  M.  R.  R.  Co.,  Grand 

Rapids  v.,  p.  363 
Chouteau,  Charlotte  v.,  p.  28 
Chouteau  v.  Pierre,  p.  28 
Christensen,  In  re.,  pp.  160,  189 
Christina  v.  Russell,  p.  25 
Church  v.  Anti  Kalsomine  Co.,  p. 

327 

Church  v.  Hubbart,  p.  29 
Circuit  Judge,  Adams  v.,  p.  297 
Circuit  Judge,  Burgess  v.,  pp.  324, 

360 
Circuit  Judge,  Culver  v.,  pp.  325, 

360 
Cfrcuit    Judge,    Grand    Rapids    & 

Ind.  R.  R.  Co.  v.,  pp.  325,  326 
Circuit  Judge,  Hollands  v.,  p.  327 
Circuit  Judge,  Hulan    v.,    pp.    356, 

357,  361 

Circuit  Judge,  Kaiser  v.,   p.  360 
Circuit  Judge,  Lake    Shore    R.    R. 

Co.  v..  pp.  325,  360 
Circuit  Judge,  Moreland  v..  p.  365 
Circuit  Judge,  Muskegon^Booming 
Co.  v.,  p.  326 


TAKLK    OF    CASES    CITED 


Circuit  Judge,  Parker  v.,  p.  325 
Circuit  Judge,  Pettinger  v.,  p.  360 
Circuit  Judge,  Roach    v.    pp.    325, 

360 

Circuit  Judge,  Thompson  v.,  p.  297 
Circuit  Judge,  Voight  Brewing  Co. 

v.,  p.  325 

Circuit  Judge,  Walker  v.  p.  330 
Circuit  Judge,  Wilcox   v.,   pp.    262, 
348,  350 
Circuit  Judge,  Wilkins   v.   pp.  325, 

360 

Clancey  v.  Clancey,  pp.  50,  277 
Clanton  v.  Barnes,  p.  138 
Clapp  v.  Clapp,  p.  202 
Clare  v.  Clare,  p.  204 
Clark,  Berger  v.,  p.  133 
Clark,  Brown  v.,  pp.  84,  274 
Clark,  McCurdy  v.,  p.  374 
Clark,  Miller  v.,  p.  250 
Clark,  State  v.,  p.  338 
Clark  v.  Clark,    pp.    14,    153,    154 
Clark  v.  Ettinge,  p.  25 
Clark  v.  Pinnegan,  p.  338 
Clark  v.  O'Rourke,  p.  300 
Clark  v.  Sable,  p.  374 
Clark  v.  State,  p.  338 
Clark  v.  Wiles,  p.  374 
Cleaver,  Park  v.,  p.  133 
Cleaver  v.  Bigelow,  p.  108 
Clements  v.  Lacey,  p.  161 
Cline  v.  Cline,  pp.  203,  204 
Clinton  v.  State,  p.  336 
Closser,  Haden  v.,  p.  370 
Clover,  Drake  v.,  p.  138 
Clow  v.  Chapman,  p.  147 
Cobbs  v.  Fire  Association,  p.  376 
Coburn  v.  Coburn,  p.  164 
Coddington  v.  Coddington,  p.  161 
Coffman  v.  Coffman,  p.  185 
Coghland  v.  S.  C.  Ry.  Co.,  p.  29 
Cohen  v.  Daniels,  p.  160 
Cohn,  Donkel  v.,  p.  336 
Colburn  v.  Colburn,  p.  213 
Colby,  Chapman  v.,  p.  28 
Colby,  Larrabee  v.,  p.  132 
Coleman,  Hilliker  v.,  p.  374 
Coleman,  M.  C.  R.  R.  Co.  v.,  p.  75 
Coles  v.  Coles,  p.  175 
Cole  v.  Cole,  pp.  108,  197 
Collins,  Shumacher  v.,  p.  115 
Collins  v.   Ashland,   p.  161 
Collins  v.  Haft,  p.  133 


Collins  v.  Wassell,  p.  138 
Colter  v.   State,   p.  336 
Colton  v.  Rupert,  pp.  294,  297 
Colvin  v.  Currier,  p.  134 
Colvin  v.  Reed,  pp.  39,  162 
Colwell,  Barnard   v.,  p.  374 
Com.,  Bright  v.,  p.  338 
Com.  v.  Burke,  p.  336 
Com.,  .Bush  v.,  p.  336 
Com..  White  v.,  p.  336 
Combs,  Cox  v.,  p.  20 
Comfort  v.  Robinson,  p.  82 
Commercial  Nat.  Bk.   v.   Gaukler, 

pp.  356,  357,  361 

Commonwealth,  Barclay  v.,  p.  175 
Commonwealth    v.    Dowdigan,    p. 

281 

Commonwealth  v.  Lane,  pp.  13,  19 
Commonwealth  v.  Littlejohn,  p.  21 
Commonwealth  v.  Stevens,  p.  178 
Comstock,  Moses  v.,  p.  28 
Comstock    v.    Comstock,  pp.   106, 

110,  117 
Conant,  Mich.  Mutual  Life  Ins.  Co. 

v.,  p.  374 
Concordia  Fire  Ins.  Co.,  Hall  v.,  p. 

375 

Cone  v.  Cone,  p.  211 
Conklin,  Deviries  v.,  pp.  126,  128, 

137,  140,  143 
Conklin  v.  Foster,  p.  107 
Conley,  Bemis  v.,  p.  86 
Conn  v.  Conn,  p.  20 
Connecticut  &c.  Ry.  Co.,  McLeod 

v.,  p.  29 

Conner  v.  Shepherd,  p.  84 
Connery,  Popp  v.,  p.  131 
Connor  v.  Jochen,  p.  298 
Cqustantine,    Bank   of,   v.   Jacobs, 

pp.  117,  119 
Continental  Mut.  F.  Ins.  Co.,  Rand 

v.,  p.  28 

Converse,  Dickey   v.,  pp.  81,  117 
Coolidge,  Wilson  v.,  p.  75 
Cook  v.  Cook,  pp.  35,  38,  184 
Coon  v.  Coon,  pp.  178,  226 
Cooper,  Krone  v.,  p.  160 
Cooper,  Tompkins  v.,  p.  25 
Cooper  v.  Beers,  p.  161 
Cooper  v.  Cooper,  pp.  110, 125,  212, 

227,    229,    288 
Coplinger  v.  The  David  Gibson,  p. 

28  x 


582 


I  \I-.I.K    OK    CASKS    riTKI' 


Coni.-li  i   v.   Cornelia,  p.  176 
Cornish   v.  Cornish,  p.  L'l". 
Corrif   \     «  <>rri<>.  pp.  239,  276 
Cotuvll.    Macomber    v.,    pp.    366, 

357,  361 
County  Clerk.  Kalamazoo  Gazette 

Co.  v..  p.  57 
Court  of  Sessions.  People  ex.  rel. 

Forsyth  v..  p.  281 
Covert  v.  Morrison,  p.  96 
Cowles.  Smith  v.,  p.  300 
Cowles  v.  Cowles,  p.  -17 
,    Cox,  St.  Clair  v.,  p.  252 
Cox  v.  Combs,  p.  20 
Cox  v.  Cox,  pp.  36,  212,  280.  288 
Cox  v.  Morrow,  p.  28 
Crain  v.  r.  S..  p.  322 
Crampton.  Campbelle  v.,  p.  15 
Crandall's  Est..  In  re.,  p.  183 
Crane,  In  re.,  pp.  262,  263 
Crane,  Allen  v.,  p.  118 
Craney,  Lynch  v.,  p.  371 
Crary  v.  Crary,  p.  204 
Cravens  v.  Cravens,  p.  162 
Crawford  v.  State,  p.  22 
Creech  v.  Creech,  p.  230 
Creyts  v.  Creyts,  pp.  230.  249,  254 
Crichton  v.  Crichton,  p.  259 


D 


Dailey  v.  Dailey,  p.  239 
Dainesse  v.  Hale,  p.  29 
Dake  Engine  Mfg.  Co.  v.  Hurley, 

p.  371 

Damon  v.  Damon,  p.  240 
Damon  v.  Deeves.  p.  135 
Danforth  v.  Danforth,  p.  216 
Daniels,  Cohen  v.,  p.  160 
Daniels  v.  Royce,  p.  134 
Danville  1st  Nat.  Bk.  v.  Cunning- 
ham, p.  26 

Darby  v.  Callaghan,  p.  132 
Dart,  Walsh   v.,  p.  27 
Darveau.  Pat  node  v..  p.  110 
Dashbrook  v.  Dashbrook,  p.  227 
Davenport,  Tazewell  v.,  p.  160 
Davenport.  Toll  v..  p.  112 
Davidson  v.  Davidson,  pp.  259,  277 
Davis.  Calf  v..  p.  171 
Davis.  Johnston  v..  p.  376 
Davis.  Maynard  v..  p.  91 


Crippen  v.   Morrison,  p.  86 
Crittenden     v.     Schermerhorn,  p. 

374 

Crookshank,  Benedict  v..  p.  374 
Croon.  Smith  v.,  pp.  160.  161 
Crosby,  Eastman  v.,  p.  28 
Crosby  v.  Huston,  p.  29 
Crossman,  Vanmeter  v.,  p.  376 
Cross  v.  Allen,  p.  6 
Cross  v.  Cross,  pp.  38,'  39,  202 
Crow.  Gould  v.,  pp.  35,  36 
Crowner  v.  Crowner,  p.  201 
Crow  v.  Crow,  p.  215 
Cfyer,  Weaver  v.,  p.  21 
Cullaton,  Singer  Mfg.  Co.  v.,  p.  142 
Cullen  v.  Harris,  p.  112 
Culver  v.  Circuit  Judge,  pp.   325, 

360 

Cuness.  Barney  v.,  p.  156 
Cunningham,     Danville     1st    Nat. 

Bk.^v.,  p.  26 
Curran  v.  Rowley,  p.  25 
Currier,  Colvin  v.,  p.  134 
Currier,  Caster  v.,  p.  26 
Curtis,  Greenwood  v.,  p.  15 
Curtis  v.  Trowe,  p.  129 
Cushraan,  Fiske  v.,  p.  125 
Cutler,  Wilt  v.,  p.  28 


Davis,   McCreary   ?.,   pp.   40,   159, 

163 

Davis,  Rhoades  v.,  p.  91 
Davis  v.  Davis,  pp.  167.  175,  212, 

259 

Davis  v.  Headley.  p.  26 
Davis  v.  Lane,  p.  25 
Davis  v.  State,  p.  337 
Davison  v.  Shanahan.  p.  375 
Dawell,  People  v.,  pp.  32.  33.  222, 

288.  297 

I>awson,  Black  v.,  p.  371 
Dawson  v.  Dawson,  pp.  196.  219 
Dayton   v.   Dayton,   p.  374 
Day  v.  Hottingham,  p.  173 
Dean,  Stringer  v..  p.  325 
Dean  v.  Cannon,  p.  161 
DeBevard,  Pelan  v..  p.  107 
DeBodes  Case.  p.  29 
Deeves,  Damon  v..  p.  135 
Degre,  Burorher  v.,  p.  13 
DeGroff.  Wright  v..  p.  90 


583 


TABLE   OP    CASES   CITED 


DeHerlan  v.  DeHerlan,  p.  168 
Deinzer,  Boylan  v.,  p.  16 
Deitzman  v.   Mullin,  p.  147 
Dei,v.  Habel,  pp.  87,  112 
DeKraft,  Barney  v.,  p.  38 
De  la  Rama  v.  De  la  Rama,  pp.  9, 

172 

Delliber  v.  Delliber,  p.  259 
DeLong     v.     Muskegon    Booming 

Co.,  p.  375 

Delor  v.  Delor,  pp.  82,  229,  244,  264 
DeMeli  v.  DeMeli,  pp.  32,  161 
Demill  v.  Moffat,  p.  374 
Deming  v.  McGill,  pp.  33,  34 
Dempster  v.  Stephen,  p.  28 
Denison,  Thompson  v.,  p.  376 
Dennick.  Matter  of,  pp.  31,  32 
Dennison  v.  Smith,  p.  297 
Demiis  v.  Dennis,  pp.  170,  204,  205 
Derfy  v.  McClurg,  p.  138 
Derr,  See  v.,  p.  374 
Des  Champlain  v.  Pes  Champlain, 

p.  244 

Desenberg,  Bates  v.,  p.  374 
Desneyer  v.  Jordan,  p.  76 
Detroit,  Beecher  v.,  p.  161 
Detroit     Board     of    Education    v. 

Wayne  County  Treasurer,  p.  373 
Detroit,  City  of,  Gadd  v.,  p.  372 
Detroit    G.    H.    &    M.    R.    R.    Co., 

Hughes  v.,  p.  337 
Detroit  L.  &  N.  R.  R.  Co.,  McCam- 

mon  v.,  p.  85 
Detroit  Savings  Bk.  v.  Truesdall, 

pp.   343,   376 
Detroit  &  M.  R'.  R.  Co.,  Ladue  v., 

p.  86 
Devanbaugh    v.    Devanbaugh,    pp. 

207,    208 

Deville  v.  Widoe,  pp.  106,  114 
Deviries  v.   Conklin,  pp.  126,  128, 

137,  140,  143 
Bewey,  Case  v.,  p.  374 
Dewey,  Lumber  Co.  v.,  p.  181 
Dewey,  People  v.,  p.  26 
Dewey  v.  Central  Car  Co,  p.  297 
DeWolunbrun,  Baptiste  v.,  p.  28 
Deyoe  v.  Superior  Court,  p.  169 
Dickey  v.  Converse,  pp.  81,  117 
Dickinson  v.  Beal,  p.  336 
Dickinson  v.  Dickinson,  p.  189 
Dickinson  v.  Dustin,  p.  339 
Dickinson  v.  Seaver,  p.  374 


District  Court,  2nd,  McKinn  v.,  p. 

181 

District  Court,  State  v.,  p.  180 
District  Court,  Worthington  v.,  p. 

181 

Ditson  v.  Ditson,  p.  35 
Diveley,  Boyer  v.,  p.  14 
Doan  v.  Feather's  Estate,  pp.  129, 

133 

Dodge,  Thomas  v.,  p.  106 
Doe,  Sessions  v.,  p.  28     , 
Doerr  v.  Forsythe,  pp.  35,  36 
Doe  v.  Eslava,\p.  28 
Doe  v.  Roe,  p.  145 
Dolph  v.  Norton,  p.  368 
Dolson  v.  Midland  Co.  R.  R.  Co., 

p.  125 

Domitzer,  German  Soc.  v.,  p.  159 
"Donkel  v.  Cohn,  p.  336 
Donoghue,  Hanley  v.,  pp.  26,  27 
Donovan,  Hockenberry  v.,  pp.  76, 

77,  91 
Donovan,    Rouse,    Hazzard   &    Co. 

v.,  p.  322 

Donovan  v.  Donovan,  p.  170 
Dorsey  v.  Brigham,  p.  173 
Dostumian,  Aslanian  v.,  p.  28 
Dougherty  v.  Snyder,  p.  161 
Doughty  v.  Doughty,  p.  37 
Douglass,  Monroe  v.,  p.  28 
Dowdigan,    Commonwealth   v.,    p. 

281 

Dowell,  People  v.,  p.  160 
Dowling  v.  Salliott,  p.  81 
Downer,  Frakee  v.,  p.  135 
Doyle,  Harpold  v.,  p.  172 
Drake  v.  Clover,  p.  138 
Drake  v.  Drake,  p.  182 
Drake  v.  Kinsel,  pp.  106,  111 
Draper  v.  Jackson,  p.  125 
Draper  v.  Stowell,  p.  132 
Driscoll  v.  People,  p.  339 
Dudley,  Blake  v.,  p.  176 
Duekstad  v.  Duekstad,.pp.  J65,  193 
Duffles  v.  Duffles,  p.  145 
Duke   v.   Duke,   pp.   164,   165 
Dulin  v.  Dulin,  p.  186 
Dumarsley  v.  Fishley,  p.  13 
Dunbar,  Mason  v.,  p.  145 
Dunham  v.  Dunnam.  pp.  32,  34,  35, 

160,  164 
Dunn   v.  Dunn,   pp.   174.  200,  228, 

287 


584 


i  \i;u:  i.  r  . 


-  rn:i- 


Dupres,  Askew  v..  , 
Durfee,  Pulling  v.,  p.  97 
Durland  v.  Durland,  p.  174 
Burning  v.  Hastings,  p.  21 
Durye,   Mills  v.,  p.  25 
Dustin,  Dickinson  v.,  p.  339 


I)ii.\si;i(l    v     Duxstad,   p.   163 

Dye  v.  Dye,  p.  183 

Dye  v.  Mann,   pp.    106,    110,    ill, 

115 
Dyson  v.  Sheely,  p.  Ill 


E 


Eager  v.  1'rico.  p.  307 
Eagle  v.  Smylie,  pp?  110,  112 
Earle  v.  Earle.   p.  114 
Eastnuin   v.  Crosby,  p.  28 
Eaton,  Hunt  v.,  p.  75 
Eaton  v.  Eaton,  pp.  20,  68,  181,  216 
Eaton  v.  Hasty,  pp.  24,  222 
Eaton  v.  Knowles,  p.  130 
Eberle's  Est.,  Barber  v.,  p.  132 
Edison  v.  Edison,  pp.  249,  318,  321 
Edwards  v.  McEnhill,  p.  128 
Eggerth  v.  Eggerth,  p.  259 
Elder,  Reel  v.,  pp.  24,  39,  222 
Eldred,  Ryerson  v.,  p.  343 
Eldred  v.  Eldred,  pp.  21,  36,  223 
Electric  Co.  v.  Morris,  p.  109 
Ellerbusch  v.  Koegel.  p.  176 
Elliott,  Hovey  v.,  p.  321 
Elliott,  Vermont  Sav.   Bk.  v.,  pp. 

112,  115,  119 

Elliott  v.  Elliott,  pp.  156,  167 
Ellison  v.  Martin,  p.  36 
Ellis  v.  Ellis,  p.  259 
Ellis  v.  Maxon,  p.  27 
Elmore  v.  Johnson,  p.  176 
Elzas  v.  Elzas.-p.  212 
Emerson  v.  Shaw,  p.  21 
Emery  v.  Airth,  p.  302 
Emmert,  Thompson  v.,  pp.  24,  222 
Emmons'  Est.  In  re,  pp.  121,  122, 

124- 


Emmons  v.  Emmons,  pp.  201,  203, 

257 

Emory  v.  Lord.  pp.  128.  131,  143 
Engleman  v.  Kngleman,  p.  204 
Engle  v.  Hall,  p.  374 
Ennis  v.  Smith,  p.  29 
Enterprise    Foundry    Co.    v.    Iron 

Moulders'  Union,  p.  268 
Erickson,   v.    Mich.   Land   &   Iron 

Co.,  p.  374 

Erkenbrach  v.  Erkenbrach,  p.  252 
Erkfitz,  Hall  v.,  p.  109 
Krnst  v.  Ernst,  p.  141 
Erskine,  St.  James  v.,  p.  371 
Ervay  v.  Ervay,  p.  318 
Eslava,  Doe  v.,  p.  28 
Etter,  People  v.,  p.  54 
Ettinge,  Clark  v.,  p.  25 
Eubanks  v.  Banka,  p.  13 
Evans,  Kempster  v.,  p.  253 
Evans  v.  Evans,  pp.  203,  215 
Evans  v.  G.  R.  L.  &  D.  R.  R.  Co., 

p.  114 

Evans  v.  Reynolds,  p.  14 
Evans  v.  Sutherland,  p.. 374 
Evening    News    Assn.,    People   v., 

p.  376 

Everman  v.  Gill.  p.  27 
Ewing  v.  Ainger,  p.  376 
Ewing  v.  Bailey,  p.  336 


Fagan,  Roberts  v.,  p.  174 
Fairbanks.  Lum  v..  p.  358      * 
Fairchild  v.  Fairchild,  p.  37 
Farmer's  and  Merchant's  Bk., 

Intyre  v.,  p.  130 
Farmers'     Mutual     Fire   Ins. 

Wilday  v.,  p.  374 
Farnham  v.  Farnham,  pp.  220, 
Farquar,  Nissen  v.,  p.  176 
Farrand  v.  Caton,  p.  112 


F;UT  v.  Sherman,  p.  80 

Feather's   Est.,  Doan   v.,   pp.   129, 

133 
Me-      Felcher,  Foster  v.,  p.  132 

Felt  v.  Felt.  pp.  37,  163 
Co.,      Fenton  v.  Reed,  p.  68 

Fera  v.  Fera.  p.  215 
259      Ferguson,  Artman  v.,  p.  129 

Ferguson  v.  Ferguson,  p.  244 

Ferguson  v.  Wilson,  p.  370 


Iff 


TABLE   OF    CASES   CITED 


Ferris,  Fletcher  v.,  p.  25 

Fidelity  v.  Brown,  p.  185 

Field,  Adams  v.,  p.  376 

Field,  Stebbins  v.,  p.  374 

Fifield,  Brown  v.,  p.  139 

Filer  v.  Fiter,  pp.  178,  314 

Finnegan,  Clark  v.,  p.  338 

Fire  Association,  Cobbs  v.,  p.  376 

Firth,  Holler  v.,  p.  338 

Firth  v.  Firth,  p.  161 

Fischer  v.  Fisher,  p.  202 

Fisher,  Auditor  General  v.,  p.  81 

Fisher,  Busch  v.,  p.  371 

Fisher  v.  Meister,  p.  110 

Fisher  v.  Provin,  p.  80 

Fishley,  Dumarsley  v.,  p.  13 

Fiske  v.  Cushman,  p.  125 

Fitzgibbons'  Est.,  In  re.  pp.  23,  66, 

67,  156,  195 
Flannagan    v.    Flannagan,   pp.    50, 

67,  330 

Fleming,  Galbraith  v.,  pp.  84,  85 
Fletchers  Est.,  Brown  v.,  p.  243 
Fletcher  v.  Ferris,  p.  25 
Flower  v.  Flower,  p.  37 
Flynn  v.  Flynn,  p.  182 
Flynn  v.  Kalamazoo  Circuit  Judge, 

p.  119 
Foley  v.  Grand  Rapids  &  Ind.  R. 

R.  Co.,  p.  326 
Foote,  Moore  v.,  p.  143 
Foote,   Pennywit   v.,    pp.   24,   222 


Ford  v.  Ford,  p.  21 
Fore,  Marx  v,  pp.  24,  222 
Forsythe,  Doerr  v.,  pp.  35,  36 
Foster,  Conklin  v.,  p.  107 
Foster  v.  Felcher,  p.  132 
Foster  v.  Hall,  p.  161 
Fowler,  Maxted  v.,  p.  375 
Fowler  v.  Fowler,  p.  313 
Fox,  Carley  v.,  p.  128 
Fralsey  v.  Downer,  p.  135 
Frame  v.  Thormann,  p.  263 
Francis,  Ocean  Ins.  Co.  v.,  p.  29 
Franklin  v.  Franklin,  pp.  160,  178, 

180,  216 

Fratley  v.  Fratley,  p.  144 
Fredenburg  v.  Turner,  p.  374 
Free,  McLeod  v.,  p.  82 
Freeman  v.  Freeman,  pp.  201,  202 
Freeman,  Wolrich  v.,  p.  14 
French  v.  Ryan,  p.  370 
Friedley,  State  v.,  p.  173 
Fritz,  Winegar  v.,  pp.  356,  357,  361 
Frolich  v.  Blackstock,  pp.  110,  368 
Frolich  v.  Carroll,  pp.  109,  131 
Froman  v.  Froman,  pp.  238,  313 
Frost  v.  Vought,  p.  45 
Fry,  State  v.,  p.  154 
Fuller  v.  Fuller,  pp.  219.  336 
Fuller  v.  Hubbard,  p.  98 
Fuller  v.  Jackson,  p.  300 
Fyock's  Estate,  p.  39 


G 


Gadd  v.  City  of  Detroit,  p.  372 
Gadsey  v.  Monroe,  p.  Ill 
Gage,  Stimson  v.,  p.  15 
Gaines,  Patterson  v.,  p.  13 
Galbraith  v.  Fleming,  pp.  84,  85 
Galloway,  Harvey  v.,  p.  79 
Galloway  v.  Glenn,  p.  25 
Gantz  v.  Toles,  p.  128 
Garcia  v.  Garcia,  p.  10 
Gardiner  v.  Manchester,  p.  21 
Gariepy,  Giles  v.,  p.  29 
Garneau,  Joly  v.,  p.  268 
Garner  v.  Garner,  pp.  34,  37 
Garnett  v.  Garnett,  p.  267 
Gas  Light  Co.,  Knowles  v.,  pp.  24, 

222     • 

Caster  v.  Currie,  p.  26 
Gaters  v.  Madelley,  p.  125 
Gates,  Harris  v.,  p.  133 


Gaukler,  Commercial  Nat.  Bk.  v. 

pp.  356,  357,  361 
Gavigan  v.  Scott,  p.  79 
Gebhard  v.  Gebhard,  p.  39 
Geiger  v.  Greiner,  p.  118 
Gellen,  Roster  v.,  pp.  94,  112 
Geller,  Pulte  v.,  pp.  112,  117 
George,  Herschfeldt  v.,  p.  110 
Gerardo  v.  Brush,  p,  370 
Gerber  v.  Upton,  p.  116 
German  Soc.  v.  Domitzer,  p.  159 
German  v.  German,  p.  229 
Gernard '  v.  Gernard,  p.  147 
Getz  v.  Getz,  p.  182 
Gibbons  v.  Livingston,  p.  25 
Gibson,   The  David,  Coplinger  v., 

p.  28 

Gibson  v.  Gibson,  p.  14 
Gi,  In  re,  p.  316 


586 


OF  «   \si:s 


Gilbert  v.  Gilbert,  p.  185 
Giles  v.  Gariepy,  p.  29 
Giles.  State  v.,  p.  280 
Cilhun   v.  Boynton,  p.  128 
Gillespie  v.  Beecher,  pp.  127,  128 
Gillett  v.  Gillett,  p.  70 
Cill   v.   Everman.  p.  27 
Oilman  v.  Oilman,  pp.  24,  161,  222 
Girdler,  People  v.,  p.  48 
Gitt,  Bowersox  v.,  p.  26 
Gladwin,  Taylor  v.,  p.  245 
Gleissner,  Carney  v.,  p.  144 
Glenn,  Galloway  v..  p.  25 
Glover  v.  Alcott.  pp.  77,  127 
Goff  v.  Thompson,  p.  80 
Goldbeck  v.  Goldbeck,  p.  215 
Golding  v.  Golding,  p.  219 
I  Goldman.  Kujeck  v.,  p.  144 
Goldsmith   v.   Goldsmith,    pp.   197, 

237,  313 
Goodman,  Chamber  of  Commerce, 

l>    133 

Goodman  v.  Goodman,  p.  227 
Goodman  v.  Shipley,  p.  132 
Gordon,  Vanorman  v.,  p.  25 
Gordon  v.  Gordon,  p.  186 
Gordon  v.  Tyler,  p.  297 
Goss,  Williams  v.,  p.  219 
Gould  v.  Crow,  pp.  35,  36 
Gould  v.  Gould,  p.  170 
Gourley  v.  Gourley,  p.  219 
Gowan,  Cartwright  v.,  p.  63 
Graff's  Estate,  In  re,  p.  89 
Graham  v.  Graham,  p.  259 
Graham  v.  Trimmer,  p.  161 
Gram  v.  Wasey,  pp.  363,  364 
Grand  Rapids  L.  &  D.  R.  R.  Co., 

Evans  v.,  p.  114 
Grand  Rapids,  Thayer  v.,  p.  375" 
Grand  Rapids  v.  C.  &  W.  M.  R.  R. 

Co.,  p.  363 
Grand  Rapids  &  Ind.  R.  R.  Co.  v. 

Circuit  Judge,  pp.  325,  326 
Grand   Rapids   &   Ind.  R.   R.   Co., 

Foley  v.,  p.  326 
Grand  Trunk  R.  R.  Co.,  Sherrill  v., 

p.  325 


Grand   Trunk  R.   R.   Co.,  Thomas 

v.  p.  28 

Grant,  Hubbell  v..  p.  143 
(Inmt.   Lambertson   v.,  p.  25 
Graves  v.  Battle  Creek,  p.  371 
Graves  v.  Graves,  pp.  174,  179 
Graves  v.  Niles,  pp.  306,  307 
Gray,  Barton  v..  p.  300 
Gray,  Roby  v.,  p.  375 
Gray,  Stevenson  v.,  p.  16 
Gray  v.  Gray,  pp.  214,  215 
Greacen    v.    Buckley    &    Douglas 

Lumber  Co.,  p.  300 
Great  Falls  Water  Co.,  Soyer  v., 

p.  21 
Great  Western  Ry.  Co.  v.   Miller, 

p.  27 
Greely  St.  Bk.,  Newton  v.,  pp.  25, 

26 
Green  v.  Green,  pp.  199,  200,  287, 

291 

Green  v.  VanBuskirk,  p.  25 
Greenwood  v.  Curtis,  p.  15 
Gregg,  Phillips  v.,  p.  14 
Gregory  v.  Gregory,  p.  32 
Gregory  v.  Oakland  Motor  Car  Co. 

p.  78 

Grego  v.  Grego,  p.  179 
Greilick  v.  Rogers,  p.  303 
Greiner,  Geiger  v.,  p.  118 
Greiner  v.  Klein,  pp.  86,  92 
Grey,  O'Donnell  v,.  p.  130 
Griffin,  Ross  v.,  pp.  238,  313 
Griffin,  Van  Storch  v..  p.  40 
Griffin  v.  Griffin,  pp.  171,  239 
Griffin  v.  Johnson,  p.  110 
Griffin    v.    Nichols,    Sheppard    & 

Co.,  pp.  106,  117 
Griffith  v.  Griffith,  pp.  206.  207 
Grizzard,  Heennon  v.,  p.  161 
Groger  v.  Groger,  p.  204 
Grover  &  Baker  S.  M.  Co.,  Water- 
town  Ins.  Co.  v.,  p.  110 
Guibert,  Lloyd  v.  p,  29 
Guilleaume,  Munroe  v.,  p.  28 
Gulick  v.  Loder,  p.  25 
Gypsum    Plaster     &     Stucco    Co., 

Byrne  v.,  pp.  362,  367 


H 

Haas,  Portage   Lake   &   L.    S.   S.      Haddock  v.   Haddock,  pp.  34,   41, 

Canal  Co.   v.,  p.  364  160,  163 

Habel,  Dei  v.,  pp.  87,  112  .  Hayden  v.  Closser,  p.  370 


587 


TABLE   OF   CASES   CITED 


Hafford,  Hascall  v.,  p.  161 
Hafford,  Herscall  v.,  p.  188 
Hagar  v.  Reclamation  District  No. 

108,  p.  321 

Haggart  v.  Morgan,  p.  161 
Haggerty,  Lumley  v.,  p.  89 
Haines,  Hines  v.,  p.  197 
Haines    v.    Haines,    pp.    194,    223, 

237,    313,    314 
Haire,  Jennison  v.,  p.  300 
Hairston  v.  Hairston,  pp.  160,  161 
Hair  v.  Hair,  p.  217 
Hale,  Dainesse  v.,  p.  29 
Halladay  v.  Mathewson,  p.  110  . 
Hall,  Collins  v.,  p.  133 
Hall,  Matter  of,  p.  14 
Hall,  Engle  v.,  p.   374 
Hall,  Foster  v.,  p.  161 
Hall,  People  v.,  p.  339 
Hall,  Sullivan  v.,  p.  371 
Hall,  Ware  v.,  p.  107 
Hall  v.  Concordia  Fire  Ins.  Co.,  p. 

375 

Hall  v.  Erkfitz,  p.  109 
Hall  v.  Hall,  pp.  161,  212,  226 
Hall  v.  Marshall,  pp.  85,  86 
Hallopeter,  In  re,  p.  191 
Hamilton  v.  Hamilton,  pp.  39,  245 
Hammond's  Estate,  Rayl  v.,  p.  375 
Hammond  v.  Hammond,  p.  314 
Hammond  v.  Wells,  p.  109 
Hanberry  v.  Hanberry,  p.  162 
Hanchett  v.  McQueen,  p.  110 
Hancock  v.  Hancock,  p.  34 
Hanley  v.  Donoghue,  pp.  26,  27 
Hanna,  Worthington  v.,  p.  27 
Hanselman,  Carstens  v.,  p.  76 
Hanson,  Karn  v.,  p.  114 
Hanson,  King  v.,  p.  147 
Hardeman,  Harris  v.,  p.  321 
Hardenberg  v.  Hardenberg,  p.  81 
Harding  v.  Alden,  pp.  34,  35,  161 
Harding  v.  Harding,  pp.  159,  162, 

215 

Hard  v.   Hard,   p.  160 
Hargroves  v.  Thompson,  p.  21 
Harkness  v.  Hyde,  p.  252 
Harpold  v.  Doyle,  p.  172 
Harral  v.  Harral,  p.  14 
Harrington,  King  v.,  p.  297 
Harrington  v.  Wands,  p.  373 
Harris,  Cullen  v.,  p.  112 
Harrison  v.  Harrison,  pp.  70,  240 

588 


Harris,  Wallace  v.,  p.  110 
Harris  v.  Balk,  p.  25 
Harris  v.  Gates,  p.  133 
Harris  v.  Hardeman,  p.  321 
Harris  v.  Harris,  pp.  38,  65 
Hartford  Ins.  Co.  v.  Owen,  p.  297 
Hartigan  v.  Hartigan,  p.  192 
Hartingh  v.  Circuit  Judge,  p.  305 
Hart  v.  Lindsey,  p.   160 
Harvey  v.  Galloway,  p.  79 
Harwood,  Territory  v.,  p.  183 
Hascall  v.  Hafford,  p.  161 
Hastings,  Durning  v.,  p.  21 
Hasty,  Eaton  v.,  pp.  24,  222 
Hatcher,  Peet  v.,  p.  25 
Hathon  v.  Lyon,  p.  83    " 
Hattle,  Hiblish  v.,  pp.  34,  36 
Haug,  Sullivan  v.,  p.  363 
Hawkins  v.  Ragsdale,  pp.  34,  36 
Hayes,  Nichols  v.,  p.  138 
Hayes,  Webber  v.,  p.  370 
Hayes  v.  Hayes,  p.  160 
Hayes  v.  Ionia  Circuit  Judge,  pp. 

325,  360 

Hayes  v.  Livingstone,  p.  90 
Hayes  v.  Rollins,  p.  16 
Haymond  v.  Haymond,  p.  189 
Haynes   v.   Nowlin,  p.   147 
Haynor  v.  Haynor,  p.  190 
Haywood  v.  Johnson,  p.  325 
Hazelton  v.  Hazelton,  p.  230 
Headley,  Davis  v.,  p.  26 
Heasley,  Bear  v.,  pp.  33,  222 
Heath,  Bradshaw  v.,  p.  38 
Heath  v.  Heath,  p.  186 
Heaton,  Rape  v.,  pp.  26,  27 
Hebel  v.  Amazon  Ins.  Co.,  p.  297 
Hebron  v.  Hebron,  p.  172 
Hedden  v.  Hedden,  p.  203 
Heennon  v.  Grizzard,  p.  161 
Hein's  Estate,  p.  39 
Heinzeman  v.  Heinzeman,  p.  220 
Heist  v.  Heist,  p.  259 
Hekking  v.  Pfaff,  p.  38 
Helwig  v.  Lascowski,  p.  339 
Henderson  v.  Henderson,  p.  267 
Henrick,  Miller  v.,  p.  29 
Henrietta  Mining  and  Milling  Co. 

v.  Johnson,  p.  252 
Henry,  Owens  v.,  p.  252 
Henry  v.  Blackburn,  p.  134 
Hepburn  v.  Warner,  p.  129 
Herall  v.  McCabe,  p.  145 


TABLE   OF    CASKS    CITKI' 


Heraty,  Philip  v.,  pp.  278,  279 
Herrick  v.  Herrick,  pp.  200,  201 

202,  203,  287 

Herrick,  Williams  v.,  p.  21 
Herscall  v.  Hafford,  p.  188 
Herschfeldt  v.  George,  p.  110 
Hervey  v.  Hervey,  p.  161 
Hestler  v.  Hestler,  p.  147 
Hews  v.  Hews,  p.  302 
H.  G.,  J.  G.  v.,  p.  207 
Hibbard,  Amphlett  v.,  pp.  108,  110, 

115 

Hibbard,  Peck  v.,  p.  29 
Hiblish  v.  Hattie,  pp.  34,  36 
Mickey,  Bennett  v.,  p.  358 
Hicks,  Torrens  v.,  p.  296 
Hicks  v.  Skinner,  p.  161 
Higgins,  Lacon  v.,  p.  29 
High,  In  re,  p.  161 
Hill,  Auditor  General  v.,  p.  376 
Hillakey  v.  Hillakey,  p.  91 
Hillard  v.  Baldwin,  p.  182 
Hilliker  v.  Coleman,  p.  374 
Hill,  Maynard  v.,  pp.  67,  152 
Hills  v.  State,  p.  14 
Hill  v.  Chambers,  pp.  83,  84,  274 
Hill  v.  Hill,  pp.  176,  325,  360 
Hilton  v.  Stewart,  p.  172 
Hinchman,  Ohio  v.,  p.  26 
Hinchman,  Watson  v.,  p.  301 
Hinds  v.  Hinds,  p.  161 
Hines  v.  Haines,  p.  197 
Hinkle  v.  Lovelace,  p.  163 
Hiram  v.   Pierce,  p.  13 
Hirshfield  v.  Waldron,  pp.  76,  132 
Hitchcock,   Stanton   v.,   p.   106 
Hitchcock  v.  Hitchcock,  p.  21 
Hitchcock  v.  Misner,  pp.  108,  109, 

115 
Hoard,  Bowles  v.,  pp.  85,  86,  114, 

246 

Hobbs,  Mills  v.,  pp.  106,  114 
Hockenberry  v.  Donovan,  pp.   76, 

77,   91 

Hodgkinson  v.  Hodgkinson,  p.  147 
Hoff  v.  Hoffr  PP.  236,  258,  291 
Hoffman,  People  v.,  p.  338 
Hoffman  v.  Busthman,   p.   Ill 
Hoffman  v.  Hoffman,  pp.  33,  160, 

165 

Hoffman  v.  Pack,  p.  370 
Hoffman  v.  Simpson,  p.  21 
Hoggin  v.  Hoggin,  p.  21 


Holbrook,  McCormick  v.,  p.  134 
Hollands   v.  Circuit,   p.  327 
Holler  v.  Firth,  p.  338 
Holmes,  Adkins  v.,  p.  16 
Holmes  v.  Brunson,  p.  131 
Holmes    v.    Holmes,    pp.    21,    147, 

no 

Holthoefer  v.  Holthoefer,  p.  228 
Hoock  v.  Sloman,  p.  303 
Hood,  Carpenter  v.,  p.  303 
Hood  v.  State,  p.  33 
Hood,  Wright  v.,  p.  131 
Hoover,  Barber  v.,  p.  133 
Hopkins,  Barkman  v.,  p.  26 
Hopkins,  Schofield  v.,  p.  106 
Hopkins  v.  Hopkins,  p.  162 
Horning  v.  Horning,  pp.  226,.  244 
Horn  v.   Chicago  &   N.  W.  R.   R. 

Co.,  p.  27 

Horn  v.  Teft,  p.  108 
Hosmer,  Bentley  v.,  p.  178 
Hosmer,  Kaiser  v.,  p.  325 
Hosford  v.  Nichols,  p.  29 
Hottingham,  Day  v.,  p.  173 
Hough,  Soule  v.,  p.  297 
Houghton  v.  Melburn,  p.  135 
Hounson,  Rhead  v.,  pp.  112,  117 
Houpt  v.  Houpt,  p.  21 
House,  Matter  of,  p.  39 
Houseman,  Kent  Co.  Agri.  Society 

v.,  p.  375 

Hovey  v.  Elliott,  p.  321 
Hovey  v.  Smith,  p.  139 
Howell,  Cadwalader  v.,  p.  160 
Howe  v.  Lemon,  p.  374 
Howe  v.  North,  pp.  126,  127 
Hewlett,  Stafford  v.,  p.  306 
Hoxie,  Kirkwood  v.,  p.  243 
Hoyt   v.   Hoyt,  p.   228 
Hroneck  v.  People,  p.  336 
Hubbard,  Carmer  v.,  pp.  370,  371 
Hubbard,  Church  v.,  p.  29 
Hubbard,  Fuller  v.,  p.  98 
Hubbard,  State  v.,  p.  160 
Hubbell  v.  Grant,  p.  143 
Hubbel  v.  McKinnon,  p.  326 
Hudson  v.  Kimberley  Pub.  Co.  v. 

Young,  p.  25 

Huffman  v.  Huffman,  pp.  186,  267 
Hughes  v.  Detroit  G.  H.  &  M.  R. 

R.  Co.,  p.  337 
Mulbert,  Rea  v.,  p.  26 


589 


TABLE   OF   CASES   CITED 


Hulen   v.   Circuit   Judge,  pp.   356, 

357,  361 

Hull  v.  Augustine,  p.  27 
Hull  v.  Webb,  p.  26 
Humphrey,  Carrauthers  v.,  p.  86 
Humphrey  v.  Humphrey,  p.  180 
Humphrey  v.  Pope,  p.  146 
Hunt  v.  Eaton,  p.  75 
Hunt  v.  Hunt,  pp.  31,  32,  161,  162, 

217 
Hurley,  Dake  Engine  Mfg.  Co.  v., 

p.   371 
Hursh,   Jeffcry  v.,  p.  374 


Hurtado  v.  California,  p.  321 
Hurton,  Bowler  v.,  p.  222 
Hurtzig  v.  Hurtzig,  p.  204 
Huston,  Bowen  v.,  p.  24 
Huston,  Crosby  v.,  p.  29 
Hutchinson     Mfg.     Co.,     John     v. 

Pinch,  p.  376 
Hutchins,  Peet,  v.,  p.  26 
Hutchins  v.  Kimmel,  pp.  13,  14,  48,. 

50,   55,  66,  198,   376 
Huth,  Lindsay  v.,  p.  109 
Hyde,  Harkness  v.,  p.  252 


Indseth,  Pierce  v.,  p.  29 
Ingersoll  v.  Ingersoll,  p.  215 
Ingham   Circuit   Judge,   Seibly  v., 

pp.   245,   250,  251,  254 
Ingram  v.  Ingram,  p.  163 
Inskeep  v.  Inskeep,  p.  201 
Insurnace  Co.,  Paine  v.,  p.  26 
Insurance  Co.  v.  McClellan,  p  128 
Insurance  Co  v.  Montague,  p.  79 
Insurance  Co.  v.  Resh,  pp.  80,  81 


Insurance  Co.  v.  Wayne  Co.  Sav- 
ings Bk.,  p.  77 

Ionia  Circuit  Judge,  Hayes  v.,  pp. 
325,  360 

Irby  v.  Wilson,  pp.  38,  162 

Iron  Co.,  Kobogum  v.,  p.  13 

Iron  Moulders  Union,  Enterprise 
Foundry  Co.  v.,  p.  368 

Ishler   v.   Ishler,   p.   219 

lyes,  Wakefield  v.,  p.  34 


Jackson,  Draper  v.,  p.  125 
^Jackson,  Puller  v.,  p.  300 
Jackson,  Stevenson  v.,  p.  110 
Jackson  v.  Jackson,  pp.  13,  15,  21 
Jackson  v.  Park,  p.  126 
Jackson  v.   Winnie,   p.   216 
Jacobs,  Berger  v.,  pp.  74,  79,  146 
Jacobs,   First   Nat.   Bank  of   Con- 

stantine  v.,  pp.  117,  119    . 
Jacobs  v.   Miller,  p.  80 
Jaffray  v.  Jennings,  p.   296 
James,  Matter  ,of,  pp.  34,  35 
Jamieson,  People  v.,  p.  370 
Jamison  v.  Jamison,  p.  178 
Jarstfer  v.  Jarstfer,  p.  228 
Jasper,    Township    of,  v.  Martin,  p. 

Ill 

Jeffery  v.  Hursh,  p.  374 
Jenkins,  Stuart  v.,  p.  132 
Jenness,    People    v.,    pp.    46,    335, 

336 

Jenness  v.  Jenness,  pp.  161,  162 
Jenne  v.  Marble,  pp.  128,  138,  143 
Jenney  v.  Q'Flynn,  p.  301 
Jennings,  Buhler  v.,  p.  128 


Jennings,  Jaffray  v.,  p.  296 
Jennison  v.  Haire,  p.  300 
Jensen,  Larson  v.,  p.  76 
Jeske  v.  Jeske,  p.  207 
J.  G.  v.  H.  G.,  p.  207 
Joachimstachl,  Kaeding  v.,  p.  108 
Jochen,  Connor  v.,  p.  298 
Jochim,    Attorney    General    v.,  .  p- 

322 

Johnson,  Elmore  v.,  p.  176 
Johnson,  Griffin  v.,  p.  110 
Johnson,  Haywood  v.,  p.  325 
Johnson,     Henrietta    Mining    and" 

Milling  Co.  v.,  p.  252 
Johnson,  State  Bk.  of  Croswell  v., 

p.  82 

Johnson  v.  Burke,  p.  300 
Johnson  v.  Johnson,  /  pp.  14,  21, 

65,  156,  162,  202,  209,  229,  240,. 

259,  280 

Johnson  v.  Richardson,  p.  107 
Johnson  v.  Rose,  p.  374 
Johnson  v.  Smith,  p.  161 
Johnson  v.  State,  p.  338 
Johnson  v.  Sutherland,  p.  128 


590 


(  \>i.s  .  rn:i. 


Johnson  v.  Turner,  p.  161 
Johnston  v.  Davis,  p.  376 
Johnston,  Wickersham  v.,  p.  28 
Joiner,  Brown  v.,  p.  97 
Joly  v.  Garneau,  p.  268 
Jones,  Caldwell  v.,  p.  129 
Jones  v.  Brinsmaid,  p.  156 
Jones   v.   Jones,   pp.   33,   144,   306, 

307 

Jones  v.  Palmer,  p.  27 
Jones  v.  State,  p.  338 


Jordan,  Desnoyer  v.,  p.  76 

Jordan  v.  Jordan,  pp.  238,  246 

Jossman  v.  Rice,  pp.  106,  110 

Joyce,  Moore  v.,  p.  133 

Joyner  v.  Joyner,  p.  163 

Judd,  Shorten  v.,  p.  21 

Judson    v.    Judson,    pp.    198,    223, 

278,   293 

Julier    v.   Julier,   p.   185 
Just  v.  State  Sav.  Bk.,  p.  130 


Kaeding  v.  Joachimstachl,  p.  108 
Kaiser  v.  Circuit  Judge,  p.  360 
Kaiser  v.  Hosmer,  p.  325 
Kalamazoo  Circuit  Judge,   Brown 

v.,  p.  330 
Kalamazoo    Circuit   Judge,    Flynn 

v.,  p.  119 
Kalamazoo  Gazette  Co.  v.  County 

Clerk,  p.  57 
Kalamazoo  Heat,  Light  &   Power 

Co,.  Kalamazoo  v.,  p.  358 
Kalamazoo    v.     Kalamazoo   Heat, 

Light  &  Power  Co.,  p.  358 
Karn  v.  Hanson,  p.  114 
Karre,  Opiopio  v.,  p.  172 
Kashon  v.  Kashon,  p.  161 
Keale  v.  Keale,  p.  201 
Kehler,  McLaren  v.,  p.  26 
Keildsen  v.  Blodgett.  p.  138 
Keith  v.  Stetter,  p.  160 
Kellam  v.  Toms,  p.  27 
Keller  v.  Keller,  p.  180 
Kellogg,  Rome  v.,  p.  108 
Kellogg  v.  Kellogg,  pp.  236,  291 
Kellogg  v.  Putnam,  p.  301 
Kelly,  Schulte  v.,  p.  370 
Kelton,  Bryant  v.,  p.  29 
Kempster  v.  Evans,  p.  253 
Kennedy  v.  Kennedy,  p.  217 
Kennicutt,  Baent  v.,  p.  300 
Kent  Co.  Agri.  Society  v.  House- 
man, p.  375 

Kermott  v.  Ayer,  pp.  27,  28 
Kern  v.  Kern,  p.  197 
Kern  v.  Verein,  p.  300 
Ketcham,  Thompson  v.,  p.  29 
Kidd.  Smith  v.,  p.  Ill 
Kiersy,  Trombley  v.,  p.  358 
Kikel  v.  Kikel,  p.  212 


Kilburn  v.  Mullen,  p.  337 
Kilburn  v.  Woodworth,  p.  252 
Kilburn.  Williams. v.,  pp.  50,  67 
Kille,  Campion  v.,  p.  28 
Killackey  y.  Killackey.  pp.  93,  98 
Kimball,  Matter  of,  p.  39 
Kimberley    Pub.    Co.     v.    Young, 

Hudson  v.,  p.  25 
Kimbro,  Newman  v.,  p.  188 
Kimmel,   Hutchins   v.,   pp.   13,   14, 

48,  50,  55,  66,  198.  376 
Kimmel  v.  Schultz  p.  25 
King,  McCausland  v..  p.  131 
King,  State  v.,  p.  336 
King,  Thomas  v.,  pp.  35,  36 
King  v.  Hanson,  p.   147 
King  v.   Harrington,  p.  297 
King  v.  Merritt,  pp.  75,  84,  85,  88 
King  v.  Moore,  p.  106 
King  v.  Page,  p.  133 
King  v.  Wilborne,  p.  118 
King  v"  Wilson,  p.  108 
Kinman,  Atwater  v.,  p.  305 
Kinney  v.  Kinney,  pp.  184,  215 
Kinsel,  Drake  v.,  pp.  106.  Ill 
Kippohi.  M;itta  v.,  pp.  107,  110 
Kirby  v.  Kirby,  p.  317 
Kirkpatrick  v.  Kirkpatrick,  p.  181 
Kirkwood  v.  Hoxie,  p.  243 
Kirkwood,  McKenna  v.,  p.  374 
Kitchell  v.  Midget,  pp.  96,  128 
Kittle.  Moshier  v..  p.  134 
Kleinke  v.  Noonan,  p.  13 
Klein.  Greiner  v..  pp.  86.  92 
Klein  v.  Klein,  pp.  239,  278 
Kline  v.  Kline,  pp.  37,  162 
Klutts  v.  Klutts,  p.  810 
Knabb,  Bolts  v.,  p.  134 
Knapp  v.  Abel,  p.  27 

591 


TABLE   OF   CASES   CITED 


Knapp  v.  Knapp,  p.  253 
Knapp  v.  Smith,  p.  132 
Knapp  v.  Swaney,  p.  109 
Knapp  v.  Wing,  p.  147 
Knight,  Barrett  v.,  p.  24 
Knight,  Bartlett  v.,  p.  222 
Knott,  In  re,  pp.  239,  278 
Knowles,  Eaton  v.,  p.  130 
Knowles  v.  Gas  Light  Co.,  pp.  24, 

222 

Knowlton  v.  Knowlton,  pp.  34,  35 
Kobogum  v.  Iron  M.  Co.,   pp.  13, 

66 

Koch  v.  Koch,  pp.  93,  182 
Koegel,  Ellerbusch  v.,  p.  176 


Kohn  v.  The  Renaissance,  p.  28" 
Kopack  v.  People,  p.  65 
Koster  v.  Gellen,  pp.  94,  112 
Kraft  v.  Kraft,  pp.  228,  244 
Kraft  v.  Raths,  p.  375 
Kroll  v.  Kroll,  p.  77 
Krone  v.  Cooper,  p.  160 
Kruger  v.  La  Blanc,  pp.  117,  118, 

119,  120 

^Krussman  v.  Krussman,  p.  170 
Kujeck  v.  Goldman,  p.  144 
Kundinger  v.  Kundinger,  p.  246 
Kurtz,  Stevenson  v.,  p.  115 
Kyle,  Thompson  v.,  p.  138 


LaBlanc.   Kruger  v.,  pp.  117,  118, 

119,  120 

Lacey,  Clements  v.,  p.  161 
Lacey  v.  Lacey,  p.  31 
Lacon  v.  Higgins,  p.  29 
Ladue  v.  D.  &  M.  R.  R.  Co.,  p.  86 
LaFevre,  LaMont  v.,  p.  118 
Lake  Shore  &  M.  S.  R.  R.  Co.  v. 

Chambers,  p.  364 
Lake  Shore  &  M.  S.  R.  R.  Co.  v. 

Circuit  Judge,  pp.  325,  360 
Lambert,  Blanchard  v.,  pp.  65,  68 
Lambert,  People  v.,  pp.  27,  28,  49 
Lambertson  v.  Grant,  p.  25 
Lambert  v.  Weber,  p.  375 
Lammis  v.  Wightman,  p.  26 
Lament  v.  La  Fevre,  p.  118 
Lamont  v.  Lamont,   pp.   163,   165, 

171 

Lando,  In  re,  p.  9 
Land  v.  Land,  p.  173 
Lane,  Commonwealth  v.,  pp.  13,  19 
Lane,  Davis  v.,  p.  25 
Lanhan  v.  Lanhan,  p.  263 
Lansing  Bowen  v.,  p.  82 
Lapworth  v.  Leach,  p.  143 
Larison  v.  Larison,  p.  144 
LaRivier  v.  LaRivier,  p.  14 
Larraway;  West  v.,   pp.   128,   135, 

143 

Larson  v.  Jensen,  p.  76 
Larrabee  v.  Colby,  p.  132 
Lascowski,   Helwig  v.,  p.  339 
Lasere  v.  Rochereau,  p.  321 
Latham  v.  Latham,  pp.  203,  213 
Lawler  v.  Lawler,  p.  244 


Lawrence  v.  Bolton,  p.  307 
Lawrence  v.  Morse,  p.  108 
Lawrence  v.  Nelson,  pp.  160,  174 
Leach,  Lapworth  v.,  p.  143 
Leak  v.  Leak,  p.  167 
Leathers  v.  Leathers,  p.  177 
Leavitt  v.  Leavitt,  pp.  45,  196,  256,. 

257 

Lee,  Rayner  v.,  p.  84 
Lee  v.  Lee,  p.  191 
Lee  v.  R.  R.  Co.,  p.  337 
Legg  v.  Legg,  p.  126 
Leighton,  Walker  v.,  p.  217 
Leith  v.  Leith,  p.  32 
LeMay  v.  Wickert,  p.  138 
Lemon,  Howe  v.,  p.  374 
Lena  wee    Circuit    Judge,    Me  Wil- 
liams v.,  pp.  236,  291 
Leonard,  Stephens  v.,  p.  117 
Leonard,  Stout  v.,  pp.  160,  161 
Leonard  v.  Leonard,  pp.  84,  210 
Leonard  v.  Pope,  p.  146 
Leonard  v.  Snow,  p.  76 
Lester,  L.  A.  Plant  v.,  p.  114 
Lester  v.  Sutton,  p.  374 
Letts  v.  Letts,  pp.  143,  240 
Levering  v.  Levering,  pp.  214,  215 
Levison  v.  Blumenthall,  p.  25 
Lewis'  App.,  p.  81 
Lewis  v.  Lewis,  p.  203 
Libby  v.  Berry,  p.  144 
Licthenheim,  Londoner  v.,  p.  336- 
Ligare  v.  Semple,  pp.  90,  91,  95 
Lindsay  v.  Huth,  p.  109 
Lindsey,  Hart  v.,  p.  160 
Lindsfelt,  St.  Sure  v.,  p.  32 


592 


T.U'.I.E   OF   CASKS    riTKI' 


Lines,  Earth  v..  p.  76 
Litowiteh    v.    Litowitch.    p.   32 
Littlefleld  v.  Brooks,  p.  160 
Littlejohn.    Commonwealth    v.,    p. 

L'l 

Liverpool  &c.  Steam  Co.  v.  Phenix 

Ins.   Co.,   p.   29 
Livingston    Circuit    Judge.    Singer 

v..  pp.  325,  360 
Livingston,  Gibbons  v.,  p.  25 
Livingston,  Hayes  v..  p.  90 
Livingstone   Probate  Judge,  Bliss 

v ..  p.  97 
Livingston    v.    Superior   Court,   p. 

26S 

Lloyd,  State  v.,  p.  191 
Lloyd  v.  Guibert,  p.  29 
Lloyd  v.  Matthews,  p.  27 
Lockhart  v.  White,  p.  65 
Lockwood  v.  Lockwood,  p.  147 
Loder,  Gulick  v.,  p.  25 
Lofvander  y.   Lofvander,  pp.  244, 

245 

Logan  v.  Logan,  p.  145 
Londoner  v.  Licthenheim,  p.  336 
Long,  Bauer  v.,  p.  110 
Long,  McFulton  v.,  p.  25 
Long  v.  Ryan,  p.  161 
Loomis.   People  v.,   p.  14 
Lord,  Emory  v.,  pp.  128,  131,  143 
Lorenz  v.  Lorenz,  p.  207 
Lorimer  v.  Lorimer,  p.  198 


Loring  v.  Thorndike,  p.  14 
Lott  v.  Lott,  p.  116 
Lougardyke  v.  Lougardyke,  p.  144" 
Louis  Appeal,  p.   111 
Lovejoy,  Perry  v.,  pp.  55,  148 
Lovelace,  Hinkle  v.,  p.  163 
Love  v.  Cherry,  pp.  160,  161 
Lozo  v.  Southerland,  pp.  107,  108, 

109.  115 

Lucas,  Swartout  v.,  p.  318 
Lucas,  Strother  v.,  p.  29 
.  Luce,  Thurstin  v.,  p.  374 
Ludington  v.  Melandy,  p.  374 
Luebebe  v.  Thorp,  p.  134 
Lumber  Co.  v.  Dewey,  p.  181 
Lumber  Co.    v.    Wyrembolski,    p. 

110 

Lumley  v.  Haggerty,   p.  89 
Lum  Lin  Ying,  In  re,  p.  14 
Lum  v.  Fairbanks,  p.  358 
Luttermoser  v.  Zeuner,  p.  82 
Ly.ell,  Chamberlain  v.,  p.  110 
Lyle,  Bebee  v.,  p.  91 
Lynch,  Cannaday  v.,  p.  337 
Lynch  v.  Craney,  p.  371 
Lynch  v.  Lynch,  pp.  212,  215 
Lynde  v.  Lynde,  pp.  33,  252 
Lynn,  Salem  v.,  p.  160 
Lyon,  Hathon  v.,  p.  83 
Lyon  v.  Lyon,   p.  156 
Lyon  v.  Smith,  p.  325 
Lyster  v.  Lyster,  p.  220 


M 


McAllister,  Knights  of  Maccabees 

v..  p.  50 

McBain,  Burt  v.,  p.  75 
McBee  v.  McBee,  p.  219 
McCabe.  Herall  v.,  p.  145 
McCammon  v,  D.  L.   &  N.  R.  R. 

Co.,  p.  85 

McCarthy  v.  McCarthy,  p.  204 
McCausland  v  King,  131 
McClain.  Pratt  Land  Co.  v.,  p.  138 
McClain  v.   McClain,  p.  186 
McClanahan     v.     McClanahan,  p. 

258 

McCleary  v.  Bixby,  p.  108 
McClellan,  Brengal  v.,  p.  25 
McClellan,  Insurance  Co.  v.,  p.  128 
McClintic,  Sauer  v.,  p.  300 
McClurg,  Derfy  v.,  p.  138 


McClung  v.  McClung,  pp.  200,  201, 

228,  246,  250 

McConnell  v.  McConnell,  p.  171 
M<  Cormick  v.  Holbrook,  p.  134 
McCreery  v.  Davis,  pp.  40,  159,  165 
M  (Curdy  v.  Alaska   &c.  Commer- 
cial Co.,  p.  28 
MeCurdy  v.  Clark,  p.  374 
McDc-ed  v.   McDeed,  p.  14 
McDonald  v.  Baltimore  &c.  R.  R. 

Co..  p    26 

McDonald  v.  McDonald,  p.  267 
McDonald  v.  McKinnon,  p.  376 
McDonald  v  Smith,  p.  300 
McDuffeo  v.  McDuffee,  p.  228 
McEnhill,  Edwards  v.,  p.  128 
McEwan  v.  Zimmer,  pp.  33. 


593: 


TABLE   OF    CASES   CITED. 


McFee  v.  South  Carolina  Ins.  Co., 

p.  29 

•McFulton  v.  Long,  p.  25 
McGhee,  Morgan  v.,  p.  14 
McGibbons,  Burch  v.,  p.  109 
McGill  v.  Deming,  pp.  33,  34 
McGill  v.  McGill,  p.  219 
McGuckin,  University  of  Mich,  v., 

p.  68 

McGuire  v.  People,  p.  337 
McHenry   v.   Bracken,   p.  14 
Mclmyre    v.    Farmer's    and    Mer- 
chant's Bk..  p.  130 
McKay,  Thompson  v.,  p.  358 
McKee    v.    \\ilcox,    pp.    106,    107, 

110,  UK 

McKelvey  v.  McKelvey,  p.  247 
McKenna  v.  Kirkwood,  p.  374 
McKenzie  v.  McKenzie,  p.  184 
McKinnon,  Hubbel  v.,  p.  326 
McKinnon,  McDonald  v.,  p.  376 
McKihn  v.  2nd  Dist.  Court,  p.  181 
McLaren  v.  Kehler,   p.  26 
McLaughlin,  People  v.,  pp.  58,  59 
McLennan  v.  McLennan,  p.  185 
McLeod    v.    Connecticut    &c.    Ry. 

Co.,  p.  29 

McLeod  v.  Free,  p.  82 
McMurray  v.  McMurray,  p.  189 
McNeal,  Scott  v.,  p.  322 
McNeil  v.  Perchard,  p.  29 
McQuaid  v.  McQuaid,  p.  216 
McQuaid,  People  v.,  p.  28 
McQueen,  Hanchett  v.,  p.  110 
McReynolds,  Martin  v.,  p.  301 
McSherry  v.  McSherry,  p.  177 
McVeigh  v.  U.  S.,  p.  321 
McVey  v.  Cantrell,  p.  134 
McWilliams    v.     Lenawee   Circuit 

Judge,  pp.  236,  291 
Maccabees,   Knights   of  v.,   McAl- 
lister, p.  50 

Maclean  v.  Scripps,  p.  376 
Macomber  v.  Cottrell,  pp.  356,  357, 

361 

Maddox,  Nichols  v.,  p.  176 
Madelley,  Gaters  v.,  p.  125 
Magahay  v.  Magahay,  p.  219 
Magoon,  Williams  v.;  p.  131  • 
Magowan  v.   Magowan,  p.  32 
Magrath  v.  Magrath,  pp.  212,  217 
Maguire  v.  Maguire,  pp.  161,  162 
Mahons  v.  Mahons,  p.  219 


Maier  v.  Circuit  Judge,  p.  330 
Mailhot  v.  Turner,  p.  Ill 
Major,  Miller  v.,  p.  6 
Malsch,  People  v.,  p.  280   » 
Maltby  v.  Plummer,  p.  375 
Manchester,   Gardiner  v.,   p.   21 
Mandell,  Burgess  v.,  p.  325 
Mann,   Dye  v.,   pp.   106,   110,  111, 

115 

Manwaring  v.  Powell,  p.  80 
Marble,  Jenne  v.,  pp.  128,  138,  143 
Marble  v.  Marble,  pp.  200,  287 
March  v.  March,  p.  268 
Marshall,  Babcock  v.,  p.  26 
Marshall,  Hall  v.,  pp.  85,  86 
Martin,  Ellison  v.,  p.  36 
Martin,  Meads  v.,  pp.  76,  132 
Martin  Lumber  Co.,  Muskegon  v., 

p.  375 

Martin,  Smith  v.  pp.  76,  126,  127 
Martin,    Township    of    Jasper    v., 

p.  Ill 
Martin   v.    Martin,  pp.   15,   16,  19, 

167,  210,  213 

Martin  v.  McReynolds,  p.  301 
Martin  v.  Thison's  Est.,  p.  252 
Marvin,  Tong  v.,  pp.  77,  79,  83,  84, 

274 

Marx  v.  Fore,  pp.  24,  222 
Maslen  v.  Anderson,  pp.  243,  254 
Mason  v.  Dunbar,  p.  145 
Mason  v.  Mason,  pp.  22,  173,  182 
Mason  v.  Partrick,  p.  371 
Masterman  v.  Masterman,  p.  174 
Matchin  v.   Matchin,  p.  110 
Mathewson,  Halladay  v.,  p.  110 
Matson  v.  Melcher,  p.  110 
Matthews,  Lloyd  v.,  p.  27 
Matta  v.  Kippola,  pp.  107,  110 
Maunausau,  People  v.,  p.  339 
Maxon,  Ellis  v.,  p.  27 
Maxted  v.  Fowler,  p.  375 
Maxwell  v.   Bay  City  Bridge  Co., 

p.  374 

Maxwell  v.  Maxwell,  p.  192 
Mayer,  Bank  of  Commerce  v.,  p. 

26 

Mayer  v.  Mayer,  p.  203 
Mayfield,  Tipton  v.,  p.  26 
Maynard  v.  Davis,  p.  91 
Maynard  v.  Hill,  pp.  67,  152 
Meajds  v.  Martin,  pp.  76,  132 
Meathe  v.  Meathe,  p.  219 


594 


i  vr.i.i:   Of   •   iSKS   <  m:i> 


M<  <hvay  v.  Needham.  pp.  13,  15 
Mcuiusnn  v.  Meginson,  p.  63 
MHirott   v.   Mchroff,  pp.  145,  147 
Meister,  Fisher  v.,  p.  110 
Mrhtmly,  LmliiiKton  v.,  p.  374 
Melburn,  Houghton  v.,  p.  135 
MHrher,  Matson  v.,  p.  110 
Mercer,  R.  R.  Co.  v.,  p.  25 
Merchants   Bank,   U.   S.   Bank   v., 

p.  25 
.Merrill,    Montgomery    v.,    pp.  296, 

297 
Merrill    v.    Montgomery,    pp.    243, 

297 

Merrill  v.  Morsett,  p.  160 
Merritt,  King  v.,  pp.  75,  84,-85.  88 
Messervey  v.  Messervey,  p.  187 
Metcalf  v.  Tiffny,  p.  147 
Mette,  Adair  v.,  p.  21  • 
Meyer,  State  v.,  p.  337  . 
Meyers  v.  Meyers,  p.  291 
.M<\ver,  Wheeler  v.,  p.  375 
Michael  v.  Michael,  p.  189 
Michigan  Air  Line  R.  Co.,  Morgan 

v.,  p.  376 
Michigan    Central    R.    R.    Co.,  v. 

Coleman,  p.  75 
Michigan  Land  &  Iron  Co.,  Erick- 

son  v.,  p.  374 
Michigan  Mutual  Life  Ins.  Co.  v. 

Conant,  p.  374 
Michigan  United   Ry.   Co.,   Chase 

v.,  p.  370 

Midgett,  Kitchell  v.,  pp.  96,  128 
Midland  Co.  R.  R.  Co.,  Dolson  v., 

p.  125 

Miller,  Bingham  v.,  p.  154 
Miller  Brewing  Co.  v.  Capital  Ins. 

Co.,  p.  25 
Miller,  Great  Western  Ry.  Co.  v., 

p.  27 

Miller,  Jacobs  v.,  p.  80 
Miller  v.  Clark,  p.  250 
Miller  v.  Henrick,  p.  29 
Miller  v.  Major,  p.  6 
Miller  v.  Miller,  pp.  203,  254 
Miller  v.  Stepper,  pp.  88,  91,  97 
Miller  v.  White,  p.  21 
Mills  v.  Durye,  p.  25 
Mills  v.  Hobbs,  pp.  106,  114 
Milne  v.   Milne,  p.  268 
Mincer   v.   Wayne   Circuit   Judge, 

p.  243 


Mind.'  v.  Minde.  pp.  236,  291 
Mining  Co.,  Kobogum  v.,  p.  66" 
Minnock,  Naylor  v.,  p.  141 
Misner,  Hitchcock  v..  pp.  108,  109V 

115 

Mitchell  v.  Smith,  p.  134 
Mitchell  v.  11.  S.,  p.  160 
Moffat,  Demill  v.,  p.  374 
Moffatt,  Moffatt.  p.  162 
Mohler  v.  Shank,  p.  160 
Moller  v.  Moller,  pp.  203,  204 
.Moore,  King  v.,  p.  106 
.Moore,  Trigg  v.,  p.  29 
Moore's  Est.,  Barnes  v.,  p.  145 
Moore  v.  Foote,  p.  143 
Moore  v.  Joyce,  p.  133 
Monger  v.  New  Era  Assn.,  p.  370 
.Monroe,  Gadsey  v.,  p.  Ill 
Monroe  v.  Douglass,  p.  28 
.Monroy  v.  Monroy,  p.  314 
Montague,  Insurance  Co.  v.,  p.  79 
Montague    v.    Montague,    pp.    156, 

188 
Montmorency  Circuit  Judge,   Pet- 

tinger  v.,  p.  325 
Montgomery,    Merrill   v.,   pp.   243, 

297 

Montgomery,  Stone  v.,  p.  138 
Montgomery    v.    Merrill,    pp.    296, 

297 

Morehead,  Smith  v.,  p.  208 
Moreland  v.  Circuit  Judge,  p.  365 
Morgan,  Benson  v.,  p.  143 
Morgan,  Haggert  v.,  p.  161 
Morgan  v.  McGhee,  p.  14 
Morgan  v.  Michigan  Air  Line   R. 

Co.,  p.  376 

Morgan  v.  Nunes,  p.  161 
Morris,  Electric  Co.  v.,  p.  109 
Morrison,  Matter  of,   p.  31 
Morrison,  Covert  v.,  p.  96 
Morrison,  Crippen  v.,  p.  86 
Morrison  v.  Berge,  p.  131 
Morrison  v.  Morrison,  pp.  212,  230, 

236,  291,   297,  298 
Moross  v.  Moross,  pp.  246,  255 
Morrow,  Cox  v.,  p.  28 
Morse.  Lawrence  v.,  p.  108 
Morse,  Sibley  v.,  p.  336 
Morse,  State  v.,  pp.  160,  163.  189 
Morsett,  Merrill  v.,  p.  160 
Moses  v.  Constock,  p.  28 
Mosher  v.  Mosher.  p.  184 


TABLE   OF    CASES   CITED 


Moshier  v.  Kittle,  p.  134 
Mosser  v.  Mosser,  p.  202 
Mottschall  v.  Mottschall,  p.  169 
Moulton  v.  Moulton,  p.  203 
Mowry  v.  Chase,  p.  27 
Moy  Lock,  State  v.,  p.  29 
Mullen,  Kilburn  v.,  p.  337 
Mullin,  Deitzman  v.,  p.  147 
Munroe  v.  Guilleaume,  p.  28 
Munson,  Budlington  v.,  p.  21 
Murphy,  Botsford  v.,  p.  374 
Murphy  v.  Murphy,  p.  257 
Murphy  v.  State,  p.  336 
Murphy  v.  Stover,  p.  130 


Murray,  Tracey  v.,  p."  94 
Murray  v.  Murray,  p.  228 
Muskegon  Booming  Co.  v.  Circuit 

Judge,  p.  326 
Muskegon   Booming   Co.,   DeLong 

v.,  p.  375 
Muskegon    Machine     &     Foundry 

Co.,  Turner  v.,  p.  375 
Muskegon  v.  Martin  Lumber  Co., 

p.  375 
Mutual    Benefit    Assn.    v.    Wayne 

Co.  Sav.  Bk.,  p.  126 
Myers  v.  Weaver,  p.  109 
Myrick  v.  Myrick,  p.  219 


N 


Nadra  v.  Nadra,  p.  70 
Names  v.  Names,  p.  202 
Nations,  Snyder  v.,  p.  336 
Naylor  v.  Minnock,  p.  141 
Neafie,  Post,v.,  p.  253 
Needham,  Medway  v.,  pp.  13,  15 
Needham  v.  Belote,  p.  84 
Neff,  Pennoyer  v.,  pp.  252,  322 
Nelso  v.  Bridport,  p.  29 
Nelson,  Lawrence  v.,  pp.  160,  174 
Nevins  v.  Nevins,-  p.  147 
Newbern  v.  Wood,  p.  130 
Newberry,  State  v.,  p.  280 
Newbould,  Wales  v.,  pp.  127,  138, 

139 

Newcomb's  Estate,  In  re,  p.  183 
Newcomb  v.  Andrews,  p.  131 
Newcomer,  Alston  v.,  p.  161 
Newcomer,  Van  Deusen  v.,  p.  374 
Newell  v.  Newell,  p.  207 
New  Era  Assn.,  Monger  v.,  p.  370 
New  Haven  1st  Nat'l.  Bk.  v.  Bal- 

som,  p.  161 
New  Home  Sewing  Machine  Co.  v. 

Bothane,  p.  374 
Newman,  Matter  of,  pp.  34,  35 
Newman  v.  Qreely  St.  Bank,  pp. 

25,  26 

Newman  v.  Kimbro,  p.  188 
Newman  v.  Newman,  p.  185 


Newton,  Bank  v.,  pp.  76,  134 
Newton  v.  Newton,  p.  291 
Newton  v.   Sly,   p.   86 
Newkirk  v.  Newkirk,  p.  374 
Nichols,  Bennett  v.,'p.  248 
Nichols,  Hosford  v.,  p.  29 
Nichols,  Rogers  v.,  p.  185 
Nichols,   Sheppard   &   Co.,   Griffin 

v.,  pp.  106,  117 
Nichols  v.  Hayes,  p.  138 
Nichols  v.   Maddox,  p.  176 
Nichols  v.  Nichols,  pp.  147,  242 
Nickerson  v.   Nickerson,   p.   144 
Niles,  Graves  v.,  pp.  306,  307 
Nimms,  Thompson  v.,  p.  21 
Nissen  v.  Farquar,  p.  176 
Nixon,  Wilcox  v.,  p.  176 
Nixon  v.  Wright,  p.  253 
Noonan,  Kleinke  v.,  p.  13 
Northfield  v.  Plymouth,  p.  68 
Northfield  v.  Vershire,  p.  21 
North,  Howe  v.,  pp.  126,  127 
Norton,  Brackett  v.,  p.  28 
Norton,  Dolph  v.,  p.  368 
Noudain  v.  Noudain,  p.   170 
Nowlin,  Haynes  v.,  p.  147 
Nunes,  Morgan  v.,  p.  161 
N.  Y.  Baptist  Union  v.  Atwell,  p. 

297 
Nye,  Arnold  v.,  p.  297 


o 

Oakland  Motor  Car  Co.,  Gregory      O'Connor,  Woodrow  v.,  p.  29 


•v.,  p.  78 
Oakley,  Palmer  v.,  p.  138 
Ocean  Ins.  Co.  v.  Francis,  p.  29 


O'Connor  v.  Boylan,  p.  117 
O'Dea  v.  O'Dea,  p.   161 
Odell,  Anderson  v.,  p.  112 


596 


T.\i:i,E   OF    CASES   CITKU 


Odom  v.  Odom,  pp.  220.  259 
O'Donnell  v.  Grey,  p.  130 
O'Flynn,  Jenney  v.,  p.  301 
Ogdeh,  Potter  v.,  p.  252 
Ogilvie  v.  Ogilvle,  p.  21?, 
Ohio  v.   Hinchman,  p.  26 
Olcott,  Calender  v.,  p.  294 
Oliver  v.  Oliver,  p.  211 
Olson  v.  Olson,  p.  337 
Olson  v.  People,  p.  173 
Opper,  Speier  v.,  pp.  128,  129 
Opiopio  v.  Karre,  p.  172 
Orcutt  v.  Orcutt,  p.  185 
Orient  Ins.  Co.  v.  Rudolph,  p.  25 
O'Rourke,  Clark  v.,  p.  300 


Orr  v.  Orr,  p.  212 

Orr  v.  Shraft,  p.  107 

Ortega,  U.  S.  v.,  p.  29 

Orth  v.  Orth,  p.  246 

Osborne  v.  Osborne,  pp.  143,  202 

Osborn  v.  Blackburn,  p.  27 

Osgood  v.  Osgood,  p.  313 

Overseers  of  Poor  v.  Overseers  of 

Poor,  p.  21 

Oviatt  v.  Smith,  p.  22 
Owen,  'Hartford  Ins.  Co.  v.,  p.  297 
Owens  v.  Henry,  p.  252 
Owens  v.  Owens,  p.  259 
Owen  v.  Yale,  p.  247 


Pack,  Hoffman  v.,  p.  370 

Page,  King  v.,  p.  133 

Page  v.  Page,  p.  232 

Paine  v.  Ins.  Co.,  p.  26 

Pain  v.   Pain,  p.  259 

Palfred   v.   Portland   &c.  Ry.  Co., 

p.  28 

Palmer,   Adams   v.,  p.  154 
Palmer,  Jones  v.,  p.  27 
Palmer  v.  Bray,  p.  117- 
Palmer  v.  Oakley,  p.  138 
Palmer   v.    Palmer,    pp.   214,    228, 

249 
Paquette,  Bunker  v.,  pp.  107,  108, 

118 

Parish  v.  Parish,  p.  185 
Park,  Jackson  v.,  p.  126 
Park  v.  Cleaver,  p.  133 
Parker,  Brown  v.,  p.  26 
Parker,  State  v.,  p>  21 
Parker,  Verill  v.,  p.  133 
Parker  v.  Barron,  p.  22 
Parker  v.  Circuit  Judge,  p.  325 
Parker  v.  Parker,  pp.  6,  175 
Parker  'v.   Stoughton  Mill  Co.,  p. 

25 

Parsons  v.  Russell,  p.  322 
Partrick,  Mason  v.,  p.  371 
Patnode  v.  Darveau,  p.  110 
Patterson,  Wolcott  v.,  p.  237 
Patterson  v.  Galnes,  p.  13 
Paul  v.  Paul,  p.  204 
Pawling,  Wernwag  v.,  p.  26 
Payne  v.  Payne,  pp,  203,  206,  207 
Pearce  v.  Pearce,  p.  163 
Pearson  v.  Pearson,  pp.  13,  15 


Peavey  v.  Peavey,  pp.  202/203 

Peck  v.  Hibbard,  p.  29 

Peck  v.  Peck,    pp.    236,    240,   243, 

291 

Peck  v.  Uhl,  p.  243 
Peet  v.  Hatchler,  p.  25 
Peet  v.  Hutchins,  p.  26 
Peet  v.  Peet,  pp.  50,  65 
Pegg  v.  Pegg,  p.   140 
Pelan  v.  DeBevard,  p.  107 
Peltier  v.  Peltier,  pp.  223,  242,  243, 

248 

Pelton  v.  Pelton,  p.  25 
Pelton  v.  Plainer,  p.  26 
Pendergast  v.  Pendergast,  p.  184 
Pendleton,  Thomas  v.,  p.  26 
Pennegar  v.  State,  pp.  15,  263 
Pennier,   Ashe  v.,  p.   147 
Penniman  v.  Pierce,  p.  Ill 
Pennoyer  v.  Neff,  pp.  252,  322 
Pennywit  v.  Foote,  pp.  24,  222 
People,  Bonker  v.,  pp.  51,  52,  195 
People,  Carrale  v.,  p.  14 
People,  Driscoll  v.,  p.  339 
People,  Hroneck  v.,  p.  336 
Peoples   Ice   Co.   v.   Steamer  Ei- 

celsior,  p.  364 
People,  Kopack  v.,  p.  65 
People,  McGuire  v.,  p.  337 
People,  Olson  v.,  p.  173 
People,  Snyder  v.,  pp.  73,  105,  110, 

127,  232 

People,  Sokel  v.,  p.  338 
Peoples'  Sav.  Bk.,  Russell  v.,  pp. 

126,   128,    129,   133,   135 
People,  Weaver  v.,  p.  281 


597 


TABLE   OF    CASES   CITED 


People  v.  Albright,  p,  281 
People  v.  Baker,  pp.  38,  39,  252 
People  v.  Bennett,  pp.  70,  195 
People  v.  Brown,  p.  49 
People  v.  Cadler,  p.  28 
People  v.  Case,   pp.   156,   160 
People  v.  Dawell,  pp.  32,  33,  222, 

288,  297 

People  v.  Dewey,  p.  26 
People  v.  Dowell,  p.  160 
People  v.  Etter,  p.  54 
People  v.  Evening  News  Assn.,  p. 

376 

People  v.  Girdler,  p.  49 
People  v.  Hall,  p.  339 
People  v.  Hoffman,  p.  338 
Jeople  v.  Jamieson,   p.  370 
People  v.  Jenness,  pp.  46,  335,  336 
People  v.  Lambert,  pp.  27,  28,  49 
People  v.  Loomis,  p.  14 
People  v.  Malsch,  p.  280 
People  v.  Maunausau,  p.  339 
People  v.  McLaughlin,  pp.  58,  59 
People  v.  McQuaid,   p.   28 
People  v.  Rawn,  p.  119 
People  v.  Reilly,  p.  281 
People  v.  Schoonmaker,    pp.    63, 

64,  70,  156 

People  v.  Sebring,  p.  280 
People  v.  Slack,    pp.    69,    70,   195, 

256 

People  v.  Spoor,  p.  173 
People  v.  Stickle,   pp.   280,   281 
People  v.  Whipple,  p.  338 
People  ex.  rel.  Forsyth  v.  Court  of 

Sessions,  p.  281 
Perce,  Pulman  v.,  p.  138 
Perchard,  McNeil  v.,  p.  29 
Percival  v.  Percival,  pp.  163,  246 
Pereira  v.  Pereira,  p.  169 
Perkins   v.   Perkins,   pp.   223,  242, 

243,  248,  249,  254,  358 
Perrin,  Stearns  v.,  p.  93 
Perry  v.  Lovejoy,  pp.  55,  148 
Peters  v.  Peters,  p.  144 
Pettiford  v.  Zollener,  pp.  95,  297 
Pettinger  v.  Circuit  Judge,  p.  360 
Pettinger   v.  Montmorency-Circuit 

Judge,  325 

Pettit  v.  Pettit,  p.  183 
Pfaff,  Hekking  v.,  p.  38 
Phelps  v.  Phelps,  p.  126 


Phenix    Ins.     Co.,     Liverpool    &c. 

Steam  Co.  v.,  p.  29 
Phillip  v.  Heraty,  pp.  278,  279 
Phillips,  Wilcocks  v.,  p.  29 
Phillips,  Wineman  v.,  p.  135 
Phillips  v.  Gregg,  p.  14 
Phillips  v.  Phillips,  p.  259 
, Phillips  v.  Stauch,  pp.  110,  115 
Pickering  v.  Cambridge,  p.  161 
Piedemont  &  Co.  Life  Ins.  Co.  v. 

Ray,  p.  25 

Pierce,  Hiram  v.,  p.  13 
Pierce,  Penniman  v.,  p.  Ill 
Pierce,  Powell  v.,  p.  298 
Pierce  v.  Chicago  &  N.  W.  R.  R. 

Co.,  p.  27 

Pierce  v.  Indseth,  p.  29 
Pierce  v.  Pierce,  p.  191 
Pierre,  Chouteau  v.,  p.  28 
Pierson,  Baker  v.,  p.  86 
Pike,  Sammons  v.,  p.  160 
Pilgrim  v.  Pilgrim,  p.  216 
Pinch,  John  Hutchinson  Mfg.  Co. 

v.,  p.  376 

Pinel  v.  Pinel,  pp.  356,  370 
Pine  v.  Pine,  p.  181 
Pingree  v.  Pingree,  p.  254 
Piper  v.  Piper,  p.  191 
Place  v.  Place,  p.  280 
Plant,  L.  A.,  v.  Lester,  p.  114 
Platner,  Pelton  v.,  p.  26 
Platt's  Appeal,  p.  39 
Platt  v.  Stewart,  pp.  243,  296,  297 
Plummer,  Maltby  v.,  p.  375 
Plymouth,  Northfield  v.,  p.  68 
Pollock  v.  Pollock,  pp.  204,  215 
Pontiac  O.  &  P.  A.  R.  Co.,  Wilson 

v.,  p.  374 

Pope,  Hurhphrey  v.,  p.  146 
Pope,  Leonard  v.,  p.  146 
Pope  v.  Pope,  p.  175 
Popp  v.  Connery,  p.  131 
Porchler  v.  Bronson,  p.  27 
Porritt  v.  Porritt,  pp.  212,  213,  214, 

220,  288 
Portage  Lake  &  L.  S.  S.  Canal  Co. 

v.  Haas,  p.  364 
Porter,  Taylor  v.,  p.  322 
Port  Huron  v.  Chadwick,  p.  374 
Portland  &c.  Ry.  Co.,  Palfrey  v., 

p.  28 

Post  v.  Neafie,  p.  253 
Post  v.  Post,  p.  16 


598 


TAI'.l.i:    or    CASKS    CITK1> 


Potter  v.  Ogden,  p.  252 
Potts  v.  Potts,  pp.  237,  249,  313 
Poupard,  Burgh  v.,  p.  304 
Powell,  Manwaring  v.,  p.  80 
Powell  v.  Pierce,  p.  298 
Powell  v.  Powell,  p.  197 
Power  v.  Power,  p.  215 
Power  v.  Russell,  p.  128 
Powers,  Barnett  v.,  p.  306 
Powers,  State  v.,  p.  336 
Powers,   Vanneman   v.,   p.   131 
Pratt  Land  Co.  v.  McClain,  p.  138 
Pratt  v.  Pratt,  p.  190 
Pratt  v.  Tefft,  pp.  85,  95 
Prettyman  v.  Prettyman,  p.  235 
Price,  Eager  v.,  p.  307 
Price  v.  Price,  p.  147 


Prince,  Chambers  v.,  pp.  160,  161 
Pringle  v.  Pringle,  p.  191 
Probate  Judge,  Bacon  v.,  p.  97 
Proctor  v.  Bigelow,  p.  55 
Proper  v.  Proper,  p.  172 
Prosser  v.  Warnes,  p.  32 
Provin,  Fisher  v.,  p.  80 
Pryor  v.  Pryor,  p.  168 
Pugh  v.  Pugh,  p.  188 
Pullen  v.  Pullen,  p.  204 
Pulling's  Est.,  In  re,  p.  92 
Pulling  v.  Durfee,  p.  97 
Pulman  v.  Perce,  p.  138 
Pulte  v.  Geller,  pp.  112,  117 
Purcell  v.  Purcell,  p.  140 
Putman,  Kellogg  v.,  p.  301 
Putney  v.  Vinton,  p.  95 


R 


Race,  Snell  v.,  p.  375 
Rae  v.  Hulbert,  p.  26 
Ragsdale,  Hawkins  v.,  pp.  34,  36 
Ralston's  Appeal,  p.  217 
Ramond  v.  Carrano,  p.  176 
Randall,  Spring  v.,  p.  290 
Randall    v.    Randall,   pp.    91,   200, 

231,  232,  287 
Rand  v.  Continental   Mut.  F.  Ins. 

Co.,  p.  28 

Rankans,  Rice  v.,  p.  28 
Rankin  v.  West,  p.  130 
Ranney,  True  v.,  pp.  14,  15 
Ransom    v.    Ransom,   pp.    75,  80, 

274 

Rape  v.  Heaton,  pp.  26,  27 
Raths,  Kraft  v.,  p.  375 
Rawn,  People  v.,  p.  119 
Rayl  v.  Hammond's  Estate,  p.  375 
Ray,   Piedemont   &   Co.   Life  Ins. 

Co.  v.,  p.  25 
Rayner  v.  Lee,  p.  84 
Rea  v.  Rea,  pp.  95,  97,  245,  250 
Reclamation     District     No.     108, 

Hager  v.,  p.  321 
Redgrave,  p.  13 
Reed,  Colvin  v.,  pp.  39,  162 
Reed,  Fenton  v.,  p.  68 
Reed  v.  Reed,  pp.  24,  38,  222,  278 
Reeg^  v.  Bumham,  p.  376 
Reel  v.  Elder,  pp.  24,  39,  222 
Reeves  v.  Reeves,  pp.  160,  188 
Registration,  Board  of,  Warren  v., 

p.  161 


Reilly,  People  v.,  p.  281 
Reinhardt,  Traverse  v.,  p.  9 
Renaissance,  Kohn  v.,  p.  28 
Resh,  Insurance  Co.  v.,  pp.  80,  81 
Reske  v.  Reske.  pp.  106,  114 
Reynolds,  Evans  v.,  p.  14 
Reynolds    v.    Reynolds,    pp.    192, 

220,  245 

Rhead  v.  Hounson,  pp.  112,  117 
Rhea,  Wingfield  v.,  p.  161 
Rhoades  v.  Davis,  p.  91 
Rice,  Anthony  v.,  p.  35 
Rice,  Jossman  v.,  pp.  106,  110 
Rice  v.  Rankans,  p.  28 
Rice  v.  Rice,  pp.  147,  374 
Rickard  v.  Rickard,  p.  203 
Richardson,  Johnson  v.,  p.  107 
Richards  v.  Richards,  p.  219 
Rich  v.  Rich.  p.  33 
Riggs  v.  Sterling,  pp.  106.  Ill,  114, 

116,  118,  119  , 

Rigney  v.  Rigney,  p.  33 
Rindlaub,  p.  184 
Ring  v.  Burt,  p.  110 
Rivers  v.  Rivers,  p.  211 
Roach   v.   Circuit  Judge,   pp.   325, 

360 

Roate  v.  Roate,  p.  170 
Robbins,  State  v.,  p.  21 
Roberts  v.  Fagan,  p.  174 
Robinson,  Comfort  v.,  p.  82 
Robinson,  Sherman  v.,  p.  91 
Robinson,  Showers  v.,  pp.  87,  111, 

116 

599 


TABLE   OF   CASES   CITED 


Robinson,  Taylor  v.,  p.  21 
Robinson,  Thomas  v.,  p.  108 
Robinson  v.  Baker,  pp.  88,  111 
Robinson  v.  Barren,  p.  91 
Robinson  v.  Robinson,     pp.     180, 

257 

Robson  v.  Robson,  p.  244 
Roby   v.    Gray,   p.   375 
Rochereau,  Lasere*  v.,  p.  321 
Rochester,  Briggs  v.,  p.   161 
Roche  v.  Washington,  p.   14 
Rockwell  v.  Rockwell,  p.  103 
Rodgers  v.  Rodgers,  pp.  34,  36,  37 
Roe,  Doe  v.,  p.  145 
Roe  v.  Roe,  pp.  34,  35,  163 
Rogers,  Greilick  v.,  p.  303 
Rogers  v.  Nichols,  p.  185 
Rohr  v.  Stechman,  p.  176 
Rollins,  Hayes  v.,  p.  16 
Rome  v.  Kellogg,  p.  108 
Root,  Barber  v.,  p.  31 
Root  v.  Root,  pp.  144,  229,  230,  236, 

258 

Rorabeck,  Barber  v.,  pp.  106,  108 
Rose,  Johnson  v.,  p.  374 
Rose  v.  Rose,  pp.  50,  212,  229,  237, 

280,  288,  313 
Rosecrance  v.  Rosecrance,  pp. 

257,  331 

Rossman  v.  Rossman,  pp.  313,  376 
Ross,  Sebastian  v.,  p.  175 
Ross,  State  v.,  pp.  J.4,  15 


Ross,  White  v.,  p.  148 

Ross  v.  Griffin,  pp.  238,  313 

Ross  v.  Ross,  pp.  79,  197,  237 

Ross  v.  Walker,  p.  128 

Roszell  v.   Roszell,  p.   45 

Rouse.  Hazzard  &  Co.  v.  Donovan, 

p.  322 

Rowley,  Curran  v.,  p.  25 
Rowley,  Sanford  v.,  p.  375 
Royce,  Daniels  v.,  p.  134 
R.  R.  Co.,  Lee  v.,  p.  337 
R.  R.  Co.  v.  Campbelle,  p.  25 
R.  R.  Co.  v.  Mercer,  p.  25 
Rubino,  Matter  of,  p.  21 
Rudolph,  Orient  Ins.  Co.  v.,  p.  25 
Rudolph  v.  Rudolph,  p.  169 
Rudd  v.  Rudd,  pp.  213,  288 
Rumping  v.  Rumping,  pp.  160,  163, 

180 

Rumsey,  Smith  v.,  pp.  110,  117 
Runkle  v.  Runkle,  p.  230 
Runyan,  Taylor  v.,  p.  27 
Rupert,  Colton  v.,  pp.  294,  297 
Russell  v.   Peoples'  Sav.  Bk.,  pp. 

126,  128,  129,  133,  135 
Russell,  Christina  v.,  p.  25 
Russell,  Parsons  v.,  p.  322 
Russell,  Powers  v.,  p.  128 
Ryan,  French  v.,  p.  370 
Ryan,  Long  v.,  p.  161 
Ryerson  v.  Eldred,  p.  343 
Ryerson  v.  Ryerson,  p.  144 


Sable,  Clark  v.,  p.  374 
Sager  v.  Tupper,  p.  374 
Saginaw  Circuit  Judge,  Caille 

Bros,  v.,  p.  326 
Salem  v.  Lynn,  p.  160 
Stlliott,  Dowling  v.,  p.  81 
Sammia  v.  Wightman,  p.  27 
Sammons  v.  Pike,  p.  160 
Sanderlin  v.   Sanderlin,  p.  134r 
Sanford  v.  Rowley,  p.  375 
Sapiro's   Appeal,  p.   138 
Sargent,  Batchelder  v.,  p.   134 
Sargent,  Shute  v.,  p.  182 
Sargent  v.  Sargent,  p.  217 
Sargood  v.  Sargood,  p.  190 
Sauer  v.  McClintic,  p.  300 
Sanvinet,  Walker  v.,  p.  322 
Savage  v.  Scott,  p.  160 


Savings  Bank,  Averill  v.,  p.  118 
Sawado  v.  State,  p.  338 
Sawyer  v.  Sawyer,  pp.  257,  291 
Scarpellini  v.  Atcaeson,  p.  125 
Schafberg  v.   Schafberg,   pp.   291, 

330 

Schafer  v.  Schafer,  p.  181 
Schermerhorn,    Crittenden    v.,    p. 

374 

Schlachter,  State  v.,  p.  38 
Schmidt  v.  Schmidt,  p.  235 
Schnabel  v.  Betts,  p.  134 
Schoenfeld  v.  Bourne,  p.  296 
Schoessen  v.  Schoessen,  p.  217 
Schofield  v.  Hopkins,  p.  106 
Scholer  v.  Scholer,  p.  317 
Schoonmaker,    People   v.,    pp.    63, 

64,  70,  156 


600 


T.M'.i.i:  OF   I-XSKS  riTKl» 


Schulte  v.  Kelly,  p.  370 
Schultz,  Kimmel  v.,  p.  25      • 
Schultz  v.  Schultz,  p.  144 
Scott,  Barrett  v.,  p.  Ill 
Scott,  Gavigan  v.,  p.  79 
Scott,  Savage  v.,  p.  160 
Scott  v.  McNeal,  p.  322 
Scott  v.  Scott,  p.  6 
Scrlpps,  Maclean  v.,  p.  376 
Scroggins  v.  State,  p.  338 
Seaver,  Dickinson  v.,  p.  374 
Sebastian  v.  Ross,  p.  175 
Sebring.  People  v.,  p.  280 
See  v.  Derr,  p.  374 
Seibly,  Adams  v.,  p.  254 
Seibly   v.    Ingham    Circuit   Judge, 

pp.  245,  250,  251,  254 
Selden,  Bovine  v.,  p.  116 
Semple,  Ligare  v.,  pp.  90,  91,  95 
Sergent  v.  Sergent,  p.  212 
Service's  Est.,  In  re,  p.  94 
Sessions  v.  Doe,  p.  28 
Sewall  v.  Sewall,  p.  32 
Shackleton,    Tillman    v.,    pp.    75, 

128,  132,  135,  137 
Shafer  v.  Bushnell,  pp.  35,  38 
Shafer  v.  Shafer,  pp.  251,  254 
Shanahan,  Davison  v.,  p.  375 
Shank,  Mohler  v.,  p.  160 
Shannon,  Burlin  v.,  pp.  161,  162 
Shanwell,  Taylor  v.,  p.  21 
Sharman  v.  Sharman,  p.  210 
Sharp  v.  Sharp,  pp.  22/0,  259 
shanuck,  State  v.,  pp.  10,  14,  263 
Shaw,  EmeVson  v.,  p.  21 
Shaw   v.   Shaw,  pp.  161,  162 
Sheely,  Dyson  v.,  p.  Ill 
Sheldon  v.  Brewer,  p.  110 
Shepardson,    Bassett    v.,    pp.    128, 

129 

Shepherd,  Connor  v.,  p.  84 
Sheridan  v.  Cameron,  p.  109 
Sherman,  Fair  v.,  p.  80 
Sherman  v.  Robinson,  p  91 
Sherrid  v.  South  wick,  p.  110 
Sherrill  v.  Grand  Trunk  R.  R.  Co., 

p.  325 

Sherwood    v.    ('cm ml    .Mich.    Sav- 
ings Bank.  pp.  343,  376 
Shinglemeyer  v.  Wright,  p.  370 
Shipley,  Goodman  v.,  p.  132 
Shoemaker  v.  Shoemaker,  pp.  200, 
287 


Shorten  v.  Judd,  p.  21 

Showers  v.  Robinson,  pp.  87,  111, 

116 

Shraft,  Orr  v.,  p.  107 
Shufield  v.  Shufleld,  p.  202 
Shumacher  v.  Collins,  p.  115 
Shumway  v.  Stillman,  pp.  24,  222 
Shute  v.  Sargent,  p.  182 
Sibley  v.  Morse,  p.  336 
Signey  v.  Signey,  p.  252 
Simmonds  v.  Allen,  p.  14 
Simons,  Bedard  v.,  p.  368 
Simons  v.  Simons,  p.  203 
Simpson,  Hoffman  v.,  p.  21 
Simpson  v.  Simpson,  p.  215 
Sims  v.  Sims,  p.  9 
Singer  Mfg.   Co.   v.   Benjamin,   p. 

374 
Singer    Mfg.    Co.    v.    Cullaton,    p. 

142 
Singer      v.      Livingston      Circuit 

Judge,  pp.  325,  360 
Sisemore  v.  Sisemore,  p.  216 
Sissung    v.    Sissung,    pp.   70,   196, 

236,  256,  291 
Sistair  v.  Sistair,  p.  9 
Skillman  v.  Skillman,  p.  245 
Skinner,  Hicks  v.,  p.  161 
Slack,  People  v.,  pp.  69,  70,  195, 

256 

Slais  v.  Slais,  p.  197 
Sloman,  Hoock  v.,  p.  303 
Sly,  Newton  v,,  p.  86 
Small  v.  Small,  p.  267 
^Smith,  Dennison  v.,  p.  297 
Smith,  Ennis  v.,  p.  29 
Smith,  Hovey  v.,  p.  139 
Smith,  Johnson  v.,  p.  161 
Smith,  Knapp  v.,  p.  132 
Smith,  Lyon  v.,  p.  325 
Smith,  McDonald  v.,  p.  300 
Smith,  Mitchell  v.,  p.  134 
Smith,  Oviatt  v.,  p.  22 
Smith's  Est.,  In  re,  pp.  94,  374 
Smith,  Starkeweather  v.,  p.  127 
Smith,  Walker  v.,  p.  134 
Smith,  Wheeler  v.,  pp.  92,  114 
Smith.  Wright  v.,  p.  374 
Smith  v.  Brown,  p.  339 
Smith  v.  Cowles,  p.  300 
Smith  v.  Croon,  pp.  160,  161 
Smith  v.  Kidd,  p.  Ill 
Smith  v.  Martin,  pp.  76.  12» 


601 


TABLE   OF    CASES   CITED 


Smith  v.  Morehead,  p.-  208 

Smith  v.  Rumsey,    pp.   110,   117 

Smith  v.  Smith,  pp.  14,  32,  33,  34, 
38,  70,  161,  195,  220,  235,  254, 
313 

Smith  v.  Waalkes,  p.  254 

Smith  v.  Walker,  p.  376 

Smith  v.  Woodworth,  p.  14 

Smylie,  Eagle  v.,  pp.  110,  112 

Smyth   Homestead,   p.   107 

Snell  v.  Race,  p.  375 

Snow,  Leonard  v.,  p.  76 

Snyder,  Dougherty  v.,  p.  161 

Snyder  v.  Nations,  p.  336 

Snyder  v.  People,  pp.  73,  105,  110, 
127,  232 

Snyder  v.  Snyder,  pp.  86,  92 

Sodini  v.  Sodini,  p.  179 

Sokel  v.  People,  p.  338 

Somers  v.  Somers,  p.  266 

Soper  v.  Soper,  p.  200 

Soule   v.    Hough,   p.   297 

South  Carolina  Ins.  Co.,  McFee  v., 
p.  29 

South  Carolina  Ry.  Co.,  Coghland 
v.,  p.  29 

Southerland,  Lozo  v.  pp.  107,  108, 
109,  115 

Southern  v.  Byles,  p.  290 

Southwick,  Sherrid  v.,  p.  110 
Southwick  v.   Southwick,  p.  217 

Sower's  Appeal,  p.  215 

Soyer  v.   Gt.  Falls  Water  Co.,  p. 

21 

Sparks  v.  Sparks,  p.  188 
Spaulding,  White  v.,  p.  88 
Spaulding  v.  Steel,  p.  161 
Spears  v.  Burton,  p.  21 

•Speier  v.  Opper,  pp.  128,  129 
Spencer,  In  re,  p.  268 
Spencer  v.  Spencer,  p.  171 
Spinney  v.  Spinney,  p.  177      , 
Spinning,  'Trowbridge  v.,  p.  26 
Spoor,  People  v.,  p.  173   . 
Spring  v.  Randall,,  p.  290 
Stackhouse  v.   Stackhouse,  p.  203 
Stafford    Mfg.    Co.,   Vohlers   v.,   p. 

365 

Stafford  v.  Hewlett,  p.  306 
Stafford  v.  Stafford,  p.  236 
Stahl,  Bear  v.,  p.  90 
Stanley  v.  Stanley,  p.  220 
Stantoh  v.  Hitchcock,  p.  106 


Stanwood  v.  Stanwood,  p.  125" 
Starbock  v.   Starbuck,  p.   39 
Starkeweather  v.  Smith,  p.  127 
State  Bk.  of  Croswell  v.  Johnson,, 

p.  82 

State,  Clark  v.,  p.  338 
State,  Clinton  v.,  p.  336 
State,  Colter  v.,  p.  336 
State,  Crawford  v.,  p.  22      . 
State,  Davis  v.,  p.  337 
State,  Hills  v.,  p.  14 
State,  Hood  v.,  p.  33 
State,  Johnson  v.,  p.  338 
State,  Jones  v.,  p.  338 
State,  Murphy  v.,  p.  336 
State,  Pennegar  v.,  pp.  15,  263- 
State,  Sawado  v.,  p.  o38 
State,  Scroggins  v.,  p.  338 
State,  Taylor  v.,  p!  34 
State,  Thompson  v.,  p.  34 
State,  Van  Fossen  v.,  p.  32 
State,  Weinberg  v.,  p.  14      . 
State,  Welsh  v.,  p.  338 
State,  Werner  v.,  p.  338 
State  v.  Behrman,   p.  14 
State  v.  Bell,  p.  15 
State  v.  Blue  Earth  County  Court,. 

p.  179 

State  v.  Boettner,  p.  176 
State  v.  Bordentown,  p.  160 
State  v.  Brown,  pp.    15,  19 
State  v.  Clark,  p.  338. 
State  v.  Diet.  Court,  'p.  180 
State  v.  Friedley,  p.  173 
State  v.  Fry,  p.  154 
State  v.  Giles,  p.   280 
Statfe  v.  Hubbard,  p.  180 
State  v.  King,  p.   336 
State  v.  Lloyd,  p.   191 
State  v.  Meyer,  p.   337 
State  v.  Morse,   pp.   160,   163,  189 
State  v.  Moy  Lock,  p.   29 
State  v.  Newberry,  p.  280 
State  v.  Parker,  p.  21 
State  v.  Powers,  p.  336 
State  v.  Robbins,   p.   21 
State  v.  Ross,  pp.   14,  15 
State  v.  Schlachter,  p.  38 
State  v.  Shattuck,  pp.  10,  14;  26S 
State  v.  Supr.  Ct,  p.  191 
State  v.  Templeton,  p.  184 
State  v.  Tutty,  p.  15 
State  v.  Walker,  pp.  20,.  21 


602 


TAI-.I.I:  I»K  CASKS  »TII:I. 


State  v.  Washington,  p.  338 
State  v.  Westmoreland,   pp.   159, 

163 

State  v    Wheeler,  p.   191 
State  v.  Williams,  p.  336 
State  v.  Woodmansee,  p.  280 
State  v.  Yoder,  p.  179 
State  Sav.  Bk.,  Just  v.,  p.  130 
St.    Clair-Tunnel    Co.,    Turner    v., 

l»p.  325,  326 

OX,  p.  262 

St.  James  v.  Erskine,  p.  371 
St.  Sure  v.  Lindsfelt,  p.  32 
Stauch,  Phillips  v.,  pp.  110,  115 
Steamer    Excelsior,    Peoples'    Ice 

Co.  v.,  p.  364 
Stearns  v.  Perrin,  p.  93 
Stebbins  v.  Field,  p.  374 
Stechman,  Rohr  v.,  p.  176 
Steel,  Spaulding  v.,  p.  161 
Steere  v.  Vanderberg,  p.  296 
Steffens   v.    Steffens,   p.   204 
Steinnegar  v.  Steinnegar,  p.  138 
Stein  v.  Stein,  p.  212 
Steller  v.  Steller,  pp.  318,  320,  321 
Stephen,  Dempster  v.,  p.  28 
Stephens  v.  Leonard,  p.  117 
Stepper,  Miller  v.,  pp.  88,  91,  97 
Sterling.    Riggs    v.t   pp.   106,   111, 

114,  116,  118,  119 
Stetter,  Keith  v.,  p.  160 
Stevens,  Commonwealth  v.,  p.  178. 
Stevenson  v.  Gray,  p.  16 
Stevenson  v.  Jackson,  p.  110 
Stevenson  v.  Kurtz,  p.  115 
Stevens  v.  Stevens,  p.  244 
Stewart,  Hilton  v.,  p.  172 
Stewart,  Platt  v.,  pp.  243,  296,  297 
Stewart,  Whipple  v.,  p.  301 
Stewart   v.   Stewart,  pp.  216,  217, 

232 

Stickle,  People  v.,  pp.  280,  281 
.Stiehr  v.  Stiehr,  p.  236 


Stillman,  Shumway  v.,  pp.  24,  222 
Stimson  v.  Gage  p.  15 
Stone,  Tucker  v.,  p.  363 
Stone  v.  Montgomery,  p.  138 
Stone  v.  Stone,  pp.  164.  175,  180, 

239 

Story,  Adams  v.,  p.  247 
Story  v.   Story,   pp.  197,  237.  248, 

313 

Stout  v.  Leonard,  pp.  160,  161 
Stoughton  Mill  Co.,  Parker  v..  p. 

25 
Stoughton.    Whelply    v.,    pp.    133, 

136 

Stover,  Murphy  v.,  p.  130 
Stowell,  Draper  v..  p.  132 
Strait  v.  Strait,  p.  33 
Streitwolf  v.   Streitwolf,  p.  32 
Stringer  v.  Dean,  p.  325 
Strother  v.  Lucas,  p.  29 
Stuart  v.  Jenkins,  p.  I::.' 
Stuart  v.  Stuart,   p.  202 
Succession  of  Gabisso,  p_176 
Sullivan,  In  re,  p.  368 
Sullivan  v.  Hall,  p.  371 
Sullivan  v.  Haug,  p.  363 
Sullivan  v.  Sullivan,  pp.  225,  226, 

259 

Superior  Court,  Deyoe  v.,  p.  169 
Superior  Court,   Livingston   v..   p. 

268 

Supreme  Court,  State  v.,  p.  191 
Sutherland,  Evans  v.,  p.  374 
Sutherland,  Johnson  v.,  p.  128 
Sutler  v.  Sutler,  p.  179 
Sutton,  Lester  v.,  p.  374 
Sutton  v.  Warren,  pp.  13,  15,  16 
Swales,  Matter  of.  p.  39 
Swaney,  Knapp  v.,  p.  109 
Swartout  v.  Lucas,  p.  318 
Sweeney  v.  Sweeney,  p.  213 
Swiney  v.  Swiney,  p.  243 
Sworski  v.  Sworski,  pp.  164,  182 


T 


Tackaberry  v.  Tackaberry,  p.  230 
Talmadge  v.  Talmadge.  p.  161 
Taylor   v.   Boardman,   pp.   79,  343, 

:;:•; 

Taylor  v.   Gladwin,  p.  245 
Taylor  v.  Porter,  p.  322 
Taylor  v.  Robinson,  p.  21 


Taylor  v.  Runyan,  p.  27 
Taylor  v.  Shanwell.  p.  21 
Taylor  v  State,  p.  338 
Tazewell  v.  Davenport,  p.   160 
Tefft,  Pratt  v.,  pp.  85.  95 
Teft.  Horn  v.,  p.  108 
Tefl  v.  Teft,  p.  153 


603 


TABL£    OF    CASES    CITED 


Templeton,  State  v.,  p.  184 
Tennant,  White  v.,  p.  164 
Terrill  v.  Terrill,  p.  167 
Territory  v.  Harwood,  p.  183 
Terry,  Weed  v.,  p.  91 
Thayer  v.  Grand  Rapids,  p.  375 
Thelan  v.  Thelan,  p.  160 
Thelen  v.  Thelen,  p.  32 
Thison's  Est.,  Martin  v.,  p.  252 
Thomas  v.  Dodge,  p.  106 
Thomas  v.  Grand  Trunk  Ry.  Co., 

p.  28 

Thomas  v.  King,  pp.  35,  36 
Thomas  v.  Pendleton,  p.  26 
Th6mas  v.  Robinson,  p.  108 
Thomas,  Thompson  v.,  p.  296 
Thompson,  Brown  v.,  p.  325 
Thompson,  Goff  v.,  p.  80 
Thompson,  Hargroves    v.,   p.   21 
Thompson,  Homestead,  p.  107 
Thompson,  Wells  v.,  p.  13 
Thompson  v.  Benefit  Assn.,  p.  300 
Thompson  v.  Denison,  p.  376 
Thompson  v.  Emmert,  pp.  24,  222 
Thompson  v.  Judge,  p.  297 
Thompson  v.  Ketcham,  p.  29 
Thompson  v.  Kyle,  p.  138 
Thompson  v.  MvKay,  p.  358 
Thompson  v.  Nimms,  p.  21 
Thompson  v.  State,  p.   34 
Thompson  v.  Thomas,  p.  296 
Thompson  v.  Thompson,    pp.    34, 

35,  170,  236,  291 
Thompson   v.   Tucker-Osborn,   pp. 

92,  93 
Thompson  v.  Whitman,     pp.     24, 

164,  165,  222 

Thompson  v.  Williamson,  p.  26 
Thormann,  Frame  v.,  p.  263 
Thorn  v.  Thorn,  p.  108 
Thorndike,  Loring  v.,  p.  14 
Thorp,  Luebebe  v.,  p.  134 
Thorp  v.  Allen,  p.  108 
Thrift  v.  Thrift,  p.  187 
Throckmorton    v.     Throckmorton, 

p.  205 
Thurber,   Watson   v.,   pp.   80,   129, 

135 
Thurstin  v.  Luce,  p.  374 


Thurston  v.   Thurston,  pp.  34,  36 
Tierney  v.  Tierney,  p.  207 
Tiffny,  Metcalf  v.,  p.  147 
Tillman  v.  Shackleton,  pp.  75,  128, 

132,  135,  137 
Tilton  v.  Tilton,  p.  220 
Tipton  v.  Mayfield,  p.  26 
Tittabawassee   Broom    Co.,   Watts 

v.,  p.  374 

Tobey  v.  Tobey,  p.  275 
Toles,  Gantz  v.,  p.  128 
Toll,  Armitage  v.,  p.  112 
Toll  v.  Davenport,  p.  112 
Tolfefson  v.  Tollefson,  p.  174 
Tompkins  v.  Cooper,  p.  25 
Toms,  Kellam  v.,  p.  27 
Tong  v.  Marvin,  pp.  77,  79,  83,  84, 

274 

Tootie  v.  Buckingham,  p.  25 
Torrans  v.  Hicks,  p.  296 
Tracey  v.   Murrayr  p.  94 
Traverse  v.  Reinhardt,  p.  9 
Trigg  v.  Moore,  p.  29 
Trimble  v.  Trimble,  p.  21 
Trimmer,  Graham  v.,  p.  161 
Trombley  v.  Kiersy,  p.  358 
Trough  v.  Trough,  p.  192 
Trowbridge  v.  Spinning,  p.  26 
Trowe,  Curtis  v.,  p.  129 
Truax,  Wells-Stone   Merc.   Co.   v.,. 

p.  25 

True  v.  Ranney,  pp.  14,  15 
Truesdall,  Detroit  Savings  Bk.  v.,. 

pp.  343,  376 
Tucker-Osborn,  Thompson  v.,  pp.. 

92,  93 

Tupper,  Sager  v.,  p.  374 
Tucker  v.  Stone,  p.  363 
Turnbull  v.  Turnbull,  p.  220 
Turner,  Fredenburg  v.,  p.  374 
Turner,  Johnson  v.,  p.  161 
Turner,  Mailhot  v.,  p.  Ill 
Turner   v.   Muskegoh   Machine   & 

Foundry  Co.,  p.  375 
Turner  v.  St.  Clair-Tunnel  Co.,  pp; 

325,  326 

Tutty.  S'ate  v.,  p.  15 
Tyler    Gordon  v.,  p.  297 
Tyler  v.  Tyler,  p.  178 


604 


TAKI.I:  or  CASKS  CITKI- 


DW,  Peck  v.,  p.  243 
rhl  v.  I'hl,  p.  240 
I'lman  v.  Ulman,  p.  252 
i'niversity   of  Michigan 

Guckin,  pt  68 
United  States,  Grain  v.,  p.  322 


United  States,  Mitchell  v.,  p.  i»;.i 
United  States  Bank  v.  Men -hants 

Bank,  p.  25 

United  States  v.  Brockins,  p.  338 
United  States  v.  Ortega,  p.  29 
Upton,  Gerber  v.,  p.  116 


United  States,  McVeigh  v.,  p.  321        Utley  v.  Utley,  pp.  226,  228 


Vail  v.  Winterstein,  p.  126 
Van  Akin.  Weaver  v..  p.  300 
Van  Buskirk,  Green  v.,  p.  25 
Van  Campne,  Brimhall  v.,  p.  28 
Vanderberg,  Steere  v..  p.  296 
Vanderberg,  Westbrook  v.,  pp.  93, 

98 

Van  Dusan  v.  Van  Dusan,  p.  50 
Van  Deusen  v.  Newcomer,  p.  374 
Van  Duzer  v.  Van  Duzer,  p.  240 
Van   Fossen  v.   State,  p.  32 
Van    Haaften   v.   Van  Haaften,  p. 

197 
Van  Inwagen  v.  Van  Inwagen,  pp. 

33,  38,  39,  221 

Vanmeter  v.  Crossman,  p.  376 
Vanneman  v.  Powers,  p.  131 
Vanorman  v.  Gordon,  p.  25 


Van   Orsdall   v.   Van   Orsdall,   pp. 

34,  35 

Van  Storch  v.  Griffin,  p.  40 
Van  Voorhis  v.  Bainenall,  p.  263 
Van  Voorhis  v.  Von  Voorhis,  p.  204 
Verein.  Kern  v.,  p.  300 
Verill  v.  Parker,  p.  133 
Vermont   Sav.   Bk.   v.   Elliott,   pp. 

112.  115,  119 

Vershire,  Northfleld  v.,  p.  21 
Vinsant  v.   Vinsant,  p.  211 
Vinton,  Putney  v.,  p.  95 
Vint  on  v.   Beamer,  p.  141 
Virolette,  Bates  v.,  p.  28 
Vohlers  v.  Stafford  Mfg.  Co.,  p.  365 
Voight    Brewery   Co.     v.     Circuit 

Judge,  p.  325 

Vosburgh  V.   Brown,  p.  134 
Vought,  Frost  v.,  p.  45 


W 


Waalkes.  Smith  v.,  p.  254 
Wager  v.  Briscoe,  p.  109 
Wa.muT  v.  Wagner,  p.  259 
Waggoner  v.  Waggoner,  p.  204 
Wagoner,  Byschlay  v.,  p.  115 
Wait  v.  Bovee,  p.  82 
Wakefield    v.   Ives.   p.   34 
Waldron,  Hirchfield  v.,  pp.  76,  132 
Waldron  v.  Waldron,  pp.  147,  229 
Waifs   v.   .\V\vbould,  pp.  127,  138, 

139* 

Walker,  Buchoz  v..  p.  91 
Walker.  Burkhardt  v.,  pp.  108,  109 
Walker.  Ross  v.,  p.  128 
Walker.  Smith  v.,  p.  376 
Walker,  State  v..  pp.  20.  21 
Walker's   Est.,   p.   168 
Walker  v.  Circuit  Judge,  p.  330 
Walker  v.  Leighton,  p.  217 
Walker  v.  Sauvinet,  p.  322 


Walker  v.  Smith,  p.  134 

Walker  v.  Walker,    pp.    161,    177, 

187 

Wallace,  Matter  of,  p.  21 
Wallace  v.  Harris,  p.  110 
Wall  v.  Williamson,  p.  13 
Walsh,  Chadwick  v.,  p.  374 
Walsh  v.  Dark,  p.  27 
Walsh  v.  Walsh,  p.  228 
Walton  v.  Walton,  p.  219 
Wands,   Harrington   v.,   p.   373 
Ward  v.  Ward,  p.  289 
Ware  v.  Hall,  p.  107 
Warner,  Hepburn  v.,  p.  129 
Wanu-r   v.    Warner,   pp.   213,   214, 

236.  280.  288,  291 
Warnes,  Prosser  v.,  p.  32 
Warren.  Button  v.  pp.  13,  15,  16 
Warren  v.  Board  of  Registration, 

p.  161 


TABLE   OF    CASES   CITED 


Warren  v.  Warren,  pp.   147,  187 
Wasey,  Gram  v.,  pp.  363,  364 
Washington,  Roche  v.,  p.  14 
Washington,  State  v.,  p.  338 
Wassell,  Collins  v.,  p.  136 
Waterman  v.  Bailey,  pp.  358,  363 
Watertown  Ins.  Co.  v.  G.  &  B.  S. 

M.  Co.,  p.  110     ' 
Watkinson  v.  Watkinson,  pp.  160, 

163 

Watkinson,  Wood  v.,  p.  26 
Watkins  v.  Watkins,  p.  162 
Watson  v.  Hinchman,  p.  301 
Watson  v.  Thurber,    pp.    80,    129, 

135 
Watts     v.     Tittabawassee  Broom 

Co.,  p.  374 

Watts  v.   Watts,   p.   171 
Wayne    Circuit    Judge,    Ayres    v., 

pp.  236,  291 
Wayne  Circuit  Judge,  Mincer  v., 

p.    243 
Wayne  Circuit  Judge,  Webb  v.,  p. 

197 
Wayne  Co.  Savings  Bk.,  Insurance 

Co.  v.,  p.  77 
Wayne   Co.    Savings    Bk.,    Mutual 

Benefit  Assn.  v.,  p.  126 
Wayne     Co.     Treasurer,     Detroit 

Board  of  Education  v.,  p.  373 
Wayne  Probate  Judge,  Pulling  v., 

p.  97 

Weaver,  Myers  v.,  p.  109 
Weaver  v.  Cryer,  p.  21 
Weaver  v.  People,  p.  281 
Weaver  v.  Van  Akin,  p.  300 
Webb,  Hull  v.,  p.  26 
Webb  v.  Wayne  Circuit  Judge,  p. 

197 

Webber  v.  Hayes,  p.  370 
Weber,  Lambert  v.,  p.  375 
Weed  v.   Terry,  p.   91 
Weimer  v.  Bunbury,  p.  243 
Weimer  v.  Weimer,  p.  184 
Weinberg  v.  State,  p.  14 
Weiss  v.  Weiss,  p.  239 
Weller  v.  Wheelock,  p.  368 
Wells'  Est.,  In  re,  p.  68 
Wells,  Hammond  v.,  p.  109 
Wells-Stone  Merc.  Co.  v.  Truax,  p. 

25 

Wells  v.  Thompson,  p.  13 
Welsh  v.  State,  p.  338 


Werner  v.   State,  p.  338 

Wernwag  v.  Pawling,  p.  26 

West  Bay  City,  Williams  v.,  p.  300 

West,  Rankin  v.,  p.  130 

West    v.    Larraway,    pp.    128,    135, 

143 

West  v.  West,  p.  173 
Westbrook  v.  Vanderberg,  pp.  93, 
^  98 

Westlake  v.  Westlake,  pp.  145,  147 
Westmoreland,    State   v.,   pp.   159, 

163 

Wetmer  v.  Banbury,  p.  322 
Whale  v.  Whale,  p.  203 
Wheeler,  Bank  of  North  America 

v.,  p.  25 

Wheeler,  State  v.,  p.  191 
Wheeler  v.  Meyer,  p.  375 
Wheeler  v.  Smith,  pp.   92,  114 
Wheeler  v.  Wheeler,  pp.  177,  191 
Wheelock,  Weller  v.,  p.  368 
Whelply  v.  Stoughton,  pp.  133,  136 
Whipfler  v.  Whipfler,  p.  140 
Whippen  v.  Whippen,  p.  176 
Whipple,  People  v.,  p.  338 
Whipple  v.  Stewart,  p.  301 
White,  Campbell  v.,  pp.  128,  132 
White,  Lockhart  v.,'  p.  65 
White,  Miller  v.,  p.  21 
White  v.  Com.,  p.  336 
White  v.  Ross,  p.  148 
White  v.  Spaulding,  p.  88 
White  v.  Tennant,  p.  164 
White  v.  White,  pp.  143,  144,  161, 

162 

White  v.  Zane,  pp.  79,  129,  139 
Whitfield  v.  Whitfield,  p.  217 
Whiting  v.  Butler,  p.  374 
Whitman,     Thompson  v.,  pp.     24, 

164,  165,  222 

Whitmore  v.  Whitmore,  p.  228 
Whitney  v.  Whitney,  p.  144 
Wickersham  v.  Johnson,  p.  .28 
Wickert,  LeMay  v.,  p.  138 
Widoe,  Deville  v.,  pp.  106,  114 
Wiggins  Ferry  Co.,  Chicago  &  R. 

R.  Co.  v.,  pp.  26,  27 
Wightman,  Lammis  v.,  p.  26 
Wightman,  Samia  v.,  p.  27 
Wilcocks  v.  Phillips,  p.  29 
Wilcox,    McKee    v.,    pp.    106,    107, 

110,  118 


•«06 


TAI:I.K  MI--  TASKS  rrncn 


Wilt-ox   v.  Circuit   Judge,  pp.  262, 

348,  350 

Wilcox  v.   Nixon,  p.  176 
\Vilcox  v.  Wilcox,  p.  14 
Wilde  v.  Wilde,  p.  207 
Wildey   v.    Farmers'   Mutual    Fire 

Ins.  Co.,  p.  374 
Wiles,  Clark   v.,  p.  374 
Wilkinson  v.  Wilkinson,  p.  167 
\Vilkins  v.  Circuit  Judge,  pp.  325, 

360 

WillboriK',  King  v.,  p.  118 
Williams,    Algood    v.,    p.    161 
Williams.  Bourgette  v.,  p.  375 
Williams,  State  v.,  p.  336 
Williams  v.  Goss,  p.  219 
Williams  v.  Herrick,   p.  21 
Williams  v.  Kilburn,    pp.    50,    67 
Williams  v.  Magoon,  p.  131 
Williams  v.  West    Bay     City,    p. 

300 
Williams  v.  Williams,  pp.  38,  146, 

175,  212 

Williamson,  Thompson  v.,  p.  26 
Williamson.  Wall  v.,  p.  13 
Williamson  v.  Williamson,  p.  205 
Willardiv.  Willard,  p.  190 
Willis  v.  Willis,  p.  188 
Wilson,  Cheever  v.,  pp.  33,  162 
Wilson,  Ferguson  v.,  p.  370 
Wilson,  Irby  v.,  pp.  38,  162 
Wilson,  King  v.,  p.   108 
Wilson  v.  Coolidge,  p.  75 
Wilson  v.  Pontiac  O.  &  P.  A.  R. 

Co.,  p.  374 

Wilson  v.  Wilson,  pp.  156,  179,  374 
Wilson  v.  Wilson  Est.,  p.  133 
Wilt  v.  Cutler,  p.  28 


Winans    v.    Winans,  .pp.    160,    163,. 

165,  178 

Winegar  v.  Fritz,  pp.  356,  357,  361 
Wineman  v.  Phillips,  p.  135 
\Vintf.  Knapp  v.,  p.  147 
\Vingfleld  v.  Rhea,  p.  161 
Wingo,  Booker  v.,  p.  138 
Winnie,  Jackson  v.,  p.  216 
Winship  v.  Winship,  p.  161 
Winston  v.  Winston,  pp.  38,  204 
Winterstein,  Vail  v.,  p.  126 
Wolcott  v.  Patterson,  p.  237 
Wolfe  v  Wolfe,  p.  147 
Wolrich  v.  Freeman,  p.  14 
Womack  v.  Womack,  p.  168 
•  Wood,  Newbern  v.,  p.  130 
Wood  v.  Watkinson,  p.  26 
Wood  v.  Wood,  pp.   160,  168,  174,. 

213,  313 

Woodmansee,  State  v.,  p.  280 
Woodrow  v.  O'Connor,  p.  29 
Woodruff  Iron  Wks.  v.  Adams,  p. 

131 

Woodruff  v.  Young,  p.  301 
Woodworth,  Kilburn  v.,  p.  252 
Woodworth,  Smith  v.,  p.  14 
Woolfenden   v.   Atkinson,   p.   76 
Worthington  v.  Dist.  Court,  p.  181 
Worthington  v.  Hanna,  p.  27 
Wright,  Shinglemeyer  v.,  p.  370 
Wright  v.  Andrews,  p.  27 
Wright  v.  DeGroff,  p.  90 
Wright  v.  Hood,  p.  131 
Wright,  Nixon  v.,  p,  253 
Wright  v.  Wright,  pp.  -21,  32,  33_ 

154,  213,  221,  222,  223,  288 
Wyrembolski,    Lumber   Co.   v.,   p. 

110 


Yale,  Owen  v.,  p.  247 
Yates  v.  Yates,  p.  192 
Yoder.  State  v.,  p.  179 
Young,  Hudson  v.  Kimberly  Pub. 
v..  p.  25 


Young,  Woodruff  v.,  p.  301 
Young  v.  Young,  p.  189 
Youngs  v.  Youngs,  p.  219 


Zane,  White  v..  pp.  79.  127,  139 
Zeuner,  Luttermoser  v.,  p.  82   - 
Zimmerman  v.  Dolph,  p.  370 
Zimmer.  McKwan  v.,  pp.  33,  222 


Zoellner,  Pettiford  v.,  pp.  95.  297 
Zoellner   v.    Zoellner,    pp.    89,    96, 
111,  117.  119,  120  . 


INDKN  TO  THI:  FOKMS  or 


AFFIDAVIT 

default,  want  of  answer,  as  to,  No.  26 
non-appearance  of  defendant,  as  to,  No.  25    ^ 
order  of  publication,  as  to,  No.  15-16 
AFFIRMANCE  OF  MARRIAGE 
bill  for,  No.  13 
cross-bill  and,  No.  31 
decree  of,  No.  54 
ALIMONY 

order  for,  and  expenses,  No.  41 
ANSWER 

form  of,  general,  No.  30 
ANNULMENT  OF  MARRIAGE 
bill  for,  No.  12 
decree  of,  No.  53 
APPEAL 

case  on,  No.  69 
claim  of,  No.  66 
bond  on,  No.  68 
notice  of,  No.  67 

of  settling  case  on,  No.  70 
of  amendments  to  case  on,  No.  71 
APPEARANCE 

notice  of,  No.  20 
ATTACHMENT 

affidavit  to  obtain,  No.  44 

order  to  show  cause  why,  should  not  issue,  No.  45 
order  for,  and  commitment,  No.  46 
ATTORNEY 

order  appointing,  to  defend,  No.  65 
BILL  FOR  DIVORCE 

bed  and  board  as  to,  No.  8 
divorce  procured  in  another  state,  No.  10 
grounds  stated  in,  being  adultery,  general  forms,  No.  1 
behalf  of  wife,  No.  2 
common  law  marriage,  from,  No.  5 
conviction  of   felony,  No.  9 
desertion,  No.  4 
extreme  cruelty,  No.  6 
habitual  drunkenness,  No.  7 
physical  incapacity,  No.  3 
refusal  to  support  wife,  No.  11 
BOND 

appeal  as  to,  No.  68 

notice  of  application  of  approval  of.  No.  67 
CASE  ON  APPEAL 
form  of,  No.  69 
notice  of  amendments  to,  No.  71 


610  INDEX    TO    THE    FORMS 

CERTIFICATE 

enrollment  as  to,  No.  58 
CHANCERY  SUMMONS 

usual  form  for,  No.  14 
COMMISSIONER 

notice  of  taking  proofs  before,  No.  34 

order  confirming  report   of,  No.   37 

petition  for  reference  to,  to  take  proofs,  No.   32 

report  of,  as  to  alimony,  No.  36 
COMMITMENT 

order  for,  No.  46 
CROSS  BILL 

answer  and,  No.  31 
DECREE 

affirming  marriage,  No.  54 

annulling  marriage,  No.  53 

discharge  of,  No.  59 

order  denying  discharge  of,  No.  62 
discharging,   No.   61 

permanent  alimony  after  divorce  as  to,  No.  51 

petition  for  discharge  of,  No.  60 
•     satisfaction  o'f,  No.  59 
DECREE  OF  DIVORCE 

alimony  as  to,  No.  50 

bed  and  board  and  for  alimony,  No.  52 

reserving  question  of  alimony,  No.  49 
DEFAULT 

affidavit  of,  for  want  of  answer,  No.   26 
DEFENDANT 

petition  for  alimony  and  expenses  by,  No.  39 
DEMAND 

payment  of  temporary  alimony  as  to,  No.  43 
DISCHARGE 

decree  as  to,  No.  59 

petition  for,  of  decree,  No.  60 
DIVORCE 

bed  and  board  and  for  alimony,  No.  52 

decree  of,  and  for  alimony,  No.  50 

permanent  alimony  after,  No.  51 
reserving  question  of  alimony,  No.  49 
ENCUMBRANCE 

injunction  to  restrain,  No.  47 
ENROLLMENT 

certificate  of,  No.  58 
EXPENSES 

order  allowing,  to  plaintiff,  No.  40 

petition  for,  No.  38 
INJUNCTION 

sale  or  encumbrance  of  property  as  to,  No.  47 

restraint  of  threatened  injury  as  to,  No.  48 
INJURY 

injunction  to  restrain,  No.  48 
MARRIAGE 

decree  affirming,  No.  54 
annulling,  No.  53 


INDEX    TO    THE    FORMS  Ml 

NON-APPEARANCE 

affidavit  of,  No.  25 
NOTICE 

amendments  to  case  on  appeal  as  to,  No.  71 

appeal  and  application  as  to,  for  approval  of  bond.  No.  67 

proofs  taken  before  commissioner  as  to,  No.  34 

settlement  of  case  on  appeal  as  to,  No.  70 
MOTION 

order  granting,  to  dismiss  bill,  No.  35 

dismissing,  No.  21 
ORDER 

appointing  an  attorney  to  defend  as  to,  No.  65 

allowing  temporary  alimony  and  expenses  to  plaintiff,  No.  40 

attachment  and  commitment  as  to,  No.  46 

confirming  report  of  commissioner,  No.  37 

denying  discharge  of  decree,  No.  62 
re-hearing,  No.  57 

temporary  alimony,  No.   42 

directing  Prosecuting  Attorney  to  appear,  No.  63 

discharging  decree,  No.  61 

granting  leave  to  file  supplemental  bill,  No.  29 
motion  to  dismiss  bill,  No.  35 

pro-confesso,  defendant  brought  in  by  publication,  No.  24 
defendant  not  appearing,  No.  22 
defendant  not  answering,  No.  23 

re-hearing  as  to,  No.  56 

reference  to  take  proofs  as  to,  No.  33 
ORDER  FOR  APPEARANCE, 

non-resident  as  to,  No.  17 
ORDER  OF    PUBLICATION 

defendant  concealed,  No.  19 

defendant's  residence  unknown,  No.  18 

non-resident   defendant,   No.   17 
ORDER  TO  SHOW  CAUSE 

attachment  should  not  issue,  why,  No.  45 
PAYMENT 

demand  for,  of  temporary  alimony,  No.  43 
PETITION 

alimony  and  expenses  as  to,  by  defendant,  No.  39> 

discharge  of  decree  as  to,  No.   60 

leave  to  file  supplemental  bill  as  to,  No.  28 

reference  to  take  proofs  as  to,  No.  32 

re-hearing  as  to,  No.  55 

temporary  alimony  and  expenses  by  plaintiff  as  to,  No.  38 
PLAINTIFF 

order  allowing  temporary  alimony  to,  No.  40 

petition  for  alimony  by,  No.  38 
PROPERTY 

injunction  to  restrain  sale  or  encumbrance,  No.  47 
PRO-CONFESSO 

order  of,  defendant  brought  in  by  publication.  No.  24 
defendant  not  appearing,  No.  22 
defendant  not  answering,  No.  23 
PROSECUTING  ATTORNEY 

order  directing,  to  appear,  No.  63 

report  of,  No.   64 


612  INDEX   TO  THE    FORMS 

PROOFS 

order  of  reference  to  take,  No.  33 
PUBLICATION 

affidavit  for  order  of,  Nos.  15  and  16 

order  of,  No.  17 

defendant  concealed,  Nos.  17  and  19 
defendant's  residence  unknown,  No.  18 
RE-HEARING 

order  for,  No.  56 

denying,  No.  57 

petition  for,  No.  55 
REPORT 

prosecuting  attorney  as  to,  No.  64 
REPORT  OF  COMMISSIONER 

alimony  as  to,  No.  36 

order  confirming,  No.  37 
SATISFACTION 

decree  as  to,  No.  59 
SUPPLEMENTAL  BILL 

order  granting  leave  to  file,  No.  29 

petition  for  leave  to  file,  No.  28 


INDEX  TO  THE  TEXT  OF  MARRIAGE  AND 
DIVORCE. 


ABANDONMENT 

wife's,  of  homestead,  §§138,  378 
ABSENCE 

domicile  effected  by,  §221 

homestead  as  to,  §141 
ABSENT  PARTY 

service  of,  §407 
ABSOLUTE  DIVORCE 

granting  of,  §§328,  330 
ACTION 

commencement  of,  §401 

court  of  equity  will  entertain  to  affirm  a  common  law  marriage, 
§281 

damages  in  barring  marriage  in  an  action,  §387 

husband  and  wife  for  tort,  §191 

husband  in,  for  alienation  of  wife's  affections,  §196 

marriage  affirmed  in,  §281 

married  woman  against  a  firm  of  which  her  husband  is  a  mem- 
ber, §189 
by  or  against  each  other,  §82 

rights  of,  between  husband  and  wife,  §188 
assignment  of  dower  as  to  §§96,  97 

services  of  wife  as  to,  §192 

void  marriage  annulled  in,  §279 

wife's,  against  husband  where  living  separate  and  apart,  §190 
money  loaned  him,  §190 

wife  in,  for  alienation  of  husband's  affections,  §193 
ACTIONS  TO  AFFIRM  MARRIAGE 

v  bill  to  affirm,  may  be  died  when  validity  of  marriage  is  doubted 

or  denied  by  one  of  the  parties,  §404 
ACTIONS  TO  ANNUL  MARRIAGE 

commencement  and  conduct  of,  §402 
ADMISSIONS  AND  CONFESSIONS 

the  court  will  not  grant  decree  upon,  alone,  §366 
ADULTERY 

cause  for  divorce  being,  §283 

character  of  witnesses  to  prove,   §289 

court  may  deny  release  from,  when,  §367 

defense  to  charge  of,  §205 

detectives  to  prove,  §290 

disposition  and  opportunity  to  commit,  §285 

divorce  because  of,  §283 

evidence  of  frequent  private  interviews  with  clergyman  not  suffi- 
cient to  establish,  §286 

facts  from  which,  may  be  inferred,  §287 
insufficient  to  establish,  §288 


614  INDEX  TO   THE    TEXT 

ADULTERY—  (Continued  ). 

frequent  professional  calls  by  physicians  as,  to,   §286 

particeps  criminis  to  prove,  §289 

competent  -witness  to  prove,  §284 

prostitutes  and  procurers  to  prove,  §289 

testimony  of  detectives  as  proof  of,  should  be  corroborated,  §290 

young  children  should  not  be  called  to  prove,  §284 
AFFIDAVIT 

contents  of,  §58 

hearing  of  motions  on,  §450 

order  of  publication  under,  §§408,  409 

party  applying  for  license  must  make,  and  file  with  county  clerk, 

§58 
AFFINITY 

prohibited  degrees  of,  as  to  marriage,  §44 
AGENT  OF  WIFE 

husband  act  as,  §166 
ALABAMA 

causes  for  divorce  in  Alabama,  §223 
ALASKA 

causes  for  divorce  in,  §224 
ALIENS 

right  of  dower  of,  §115 
ALIENATION  OF  AFFECTIONS 

action  for,  §190      /#£> 

evidence  in  action   for,  §197 

homestead  effected  by,  §140 
ALIMONY 

see  Permanent  Alimony  and  Temporary  Alimony 

alteration  of  decree  for,  §360 

amount  of  temporary,   §339 

amount  to  be  allowed  as  temporary  depends  upon  the  particular 
circumstance,  §440 

decree  for,  rendered  in  another  state,  §375 

husband  not  entitled  to,  unless  authorized  by  statute,  §377 

foreclosure  of  lien  for,  §359 

permanent,  §348 

questions  of  guilt  not  considered  on  applications  for,  §439 

wife  entitled  to  temporary,  §339 

desertion  by  husband,  §382 
ALIMONY  AND  EXPENSES 

procured  how,   §437 
AMENDMENTS 

decree  as  to,  §466 

pleadings  as  to,  §417 
ANNULMENT  OF  MARRIAGE 

see  Marriage 

actions  for,  where  brought,  §18 

court  will  deny  when,  §364 

custody  of  children  as  to,  §364 

grounds  for,  because  of  force  or  fraud,  §364 
imprisonment  as,  §302 
physical  incapacity,   §365 

suit  can  be  maintained  for,  only  by  injured  party,  §365 

who  may  ask  for,  §18 


l\j>i:\    TO  mi:    i 

ANSWER 

allegations  of  bill  must  have  an.  before  setting  forth  matters 
in  cross-bill,  §420 

dates,  sums  and  numbers  may  be  expressed  in,  either  in  figures 
or  words,  §418 

default  in,  §415 

facts  in,  should   be  stated  without  repetition,   §418 

general  allegations  of,  §418 

matters  charged  on   information   and  belief  in,   §418 

paragraphs  in,  numbered  consecutively,  |418 

supplemental  bill  as  to,  §429 
•ANTE-NUPTIAL  CONTRACTS 

contracts  made  between  persons  in  contemplation  of  marriage, 
§84 

dower  effected  by,  §108 

enforced  in  a  court  of  equity,  §110 
ANTE-NUPTIAL  HABITS 

drunkenness   as   to,   §321 
APPEAL 

bond  to  stay  proceedings  pending  in,  §481 

claim  of,  when  to  be  filed,  §479 

extension  of  time  for,  §480 

returns  in  making,  §487 

method  of  settling  evidence  for,  §483 

motion  to  dismiss,    §488 

notice  of,  how  served,  §490 

clerk  to  place  cause  on  calendar,  §495 

original  files  in,  may  be  dispensed  with,  when,  §486 

return  of,  by  clerk,  §485 

what  to  contain,  §485 

right  to,  depends  upon  statute,  §487 

service  of  papers  on,  §489 
APPEAL   BOND 

additional,  may  be  required,  when,  §481 

approval  of,  §481 

condition  of,  §481 

notice  for  application  for  approval  of,  §481 

penalty  of,  by  whom  fixed,  §481 
APPEAL  FROM  CONVICTION 

effect  of,  by  one  of  the  parties  to  imprisonment.  §302 
APPEAL  TO  SUPREME  COURT 

who  may  appeal,  §478 
APPEARANCE 

court  may  order,  of  prosecuting  attorney,  8372 

defendant  makes  his,  §410 

jurisdiction  conferred  by,  §30 

petition  for,  to  bar  dower  of  incompetent,  §125 

prosecuting  attorney  filing,  §472 
APPRAISAL  OF  HOMESTEAD 

making  of,  §151 

new,  when,  §158 

report  of,  §155 
ARGUMENT 

call  of  cases  for,  §498 


616  INDEX   Ttf  THE   TEXT 

AGREEMENT—  ( Continued ) . 

opening  and  closing,  §465 

notice  of,  §495 

time  allowed  for,  $465 

extension  of,  §465 
ARIZONA 

causes  for  divorce  in,  §225 
ARKANSAS 

causes  for  divorce  in,  §226 
ASSIGNMENT  OF  DOWER 
action  before,  §§98,  122 
judge  of  probate  may  make,  §102 
ATTACHMENT 

payment  of  alimony  by,  §444 
BANKRUPTCY 

adjudication  in,  effecting  permanent  alimony,  §359 
BARRING  DOWER 

methods  of,  by  wife  or  widow,  §107 
BARRING  DOWER  OF  INCOMPETENT 
disposition  of  funds  as  to,  §129 
guardian  to  be  appointed  by  probate  court,  §127 
husband  cannot  be  guardian,  §127 
BIGAMY 

defense  to  the  charge  of,  §205 
BILLS  FOR  DIVORCE 

verification  of,  how  made,  §400 
BILL  OF  COMPLAINT 

allegation  of,  in  annulment  of  marriage,  §403 
adultery,  §394 
desertion,  §396 

divorce  in  another  state,   §397 
habitual  drunkenness,   §397 
impotency,  §396 
imprisonment,  §396 
non-support  of  wife,  §398 
supplemental  pleadings,  §423 

arrangement  of,  into  paragraphs  numbered   consecutively,   §399 
causes  for  divorce   should  be  clearly  and  concisely  stated  in, 

§399 
character  of  physical  incompetency  or  impotency  must  be  stated 

in,  §395 

contents  of,  §284 
copy  of,  to  be  served  when,  §411 
domicile  stated  in,  §392 

facts  not  alleged  in,  cannot  be  made  available,  §284 
frame  of,  same  as  in  other  chancery  /cases/§399 
impotency  if  incurable  stated  in,  §395 

names  and  ages  of  children  must  be  stated  in,  §§372,  393 
oath  of  plaintiff  in,  as  to  collusion,  §337 
particular  acts  stated  in,  §394 

person  with  whom  adultery  is  committed  stated  in,  §394 
preparation  and  filing  of,  first  step  in  suit,   §399 
requirements  of,  §391 
wife  may  file,  in  her  own  name,  §338 


iM'i:\  TO  TIIK    ir.xr  ('.IT 

BILL  TO  AFFIRM   MARRIAGE 

allegations  of,  §404 
BILL  TO  ANNUL  MARRIAGE 

exhibition  of,  by  whom,  §363 

idiocy  or  lunacy,  §363 

non-age  as  to,  §363 

who  may  file,  §363 
BRIEFS 

contents  and  service,  §497 

motions  in,  §494 
BRITISH  EMPIRE 

divorce  laws  of,  §§6,  211 
BURDEN  OF  PROOF 

complainant   has,   in   establishing   the   incurable   nature   of   im- 

potency,  §294 
CALIFORNIA 

causes  for  divorce  in,  §227 
CANADA 

divorce  laws  of,  §212 
CASE   ON  APPEAL 

amendments  to,  §484 

contents  of,  §483 

filing  of,  with  clerk,  when,  §484 

requirements  of  rules  as  to,  are  amendatory,  §484 

notice  of  settling,  §484 

stenographers'   notes   in,    should   be   furnished   by   the  opposite 

party,  §484 
CAUSES  FOR  ABSOLUTE  DIVORCE 

adultery  is  a,  §284 

conviction  of  crime  is  a,  §291 
another  state  is  a,  §300 

desertion  is  a,  what  constitutes,  §304 

divorce  obtained  in  another   state  is  a,  §323 

drunkenness  is  a,  §317 

foreign  divorce  obtained  by  one  party  is  a,  §324 

imprisonment  for  three  years  or  more  is  a,  §297 

jurisdiction  and  residence  of  parties  as   to,   $325 

non-support  is  a,  §335a 
CHANCERY 

jurisdiction   of  courts   in,   §390 

verification  of  pleadings,  §420 
CHILDREN 

allowance  for  support  of,  may  be  changed,  when,  §385 

care  and  custody  of,  while  suit  pending,  §340 
changing  of,  §385 

decree  providing  for,  may  be  changed,  §341 
father  entitled  to,  when,  §341 
final  decree,  §341 
mother  entitled  to,  when,  §341 
separation  of  husband  and  wife  as  to,  §386 

legitimacy  of,  when   marriage  dissolved  by  adultery  committed 
by  wife,  §361 

plaintiff  should  so  state  his  desire  for  the  custody  of,  §393 

statute  in  regard  to  custody  of,  not  mandatory,  §341 


618  INDEX   TO   THE   TEXT 

CEREMONY 

marriage,   required,   §§34,   47 
CIRCUMSTANTIAL  EVIDENCE 

see  Evidence 
CIVIL  CONTRACT 

marriage  more  than,  §73 
CHASTITY 

previous,  as  to  validity,  §43 
CLAIM  OF  APPEAL 

filing  of,  and  payment  of  fee,  jurisdictional,  §482 
CLERGYMAN  OR  MAGISTRATE 

duty  of,  §60 

marrying  without  a  license,  §61 
CLERK 

certificate  of  marriage  filed  with,  §§55,  56 

duties  of  county,  §59 

.     supreme  court  taxing  costs,  §499 

refusal  to  give  license,  §61 
CO-HABITATION 

punishment  for,  §362 

validity  shown  by,  after  divorce,  §47 
COLLUSION 

dower  as  to,  §123 

oath  of  plaintiff  as  to,  §337 
COLORADO 

causes  for  divorce  in,  §228       * 
COMMISSIONER 

reference  to,  §433 
COMMON  LAW 

husband  and  wife  at,  §78 

incestuous  marriage  at,  §71 

property  rights,  §79 
COMMON  LAW  MARRIAGE 

relation  of,  may  be  established  without  any  formal  ceremony, 

§50 
COMPETENCY  OF  PARTIES 

marriage  effected  by,  §46 

married  woman  as  to,  §165 
COMPLAINT 

see  Bill  of 
CONDONATION 

cruelty  charge  effected  by,  §335 

definition  of,  §335 

desertion  as  to,  §312 

drunkenness  as  to,  §322 
CONFLICT  OF  LAWS 

divorce  as  to,  §23 

jurisdiction  as  to,  §326 

marriage  as  to,  §§14,  19 
CONNECTICUT 

causes  for  divorce  in,  §229 
CONSANGUINITY 

prohibited  degrees  of,  as  to  marriage,  §44 


IM»I:\    in    i  11 1:    i  619 

CONSENT 

marriage  dependent  upon,  $10 

obtaining,  by  fraud,  $208 

parents  or  guardians,  §11 
CONSTITUTION 

contracts  of  married  women,  §§159,  160 

due  process  of  law,  §445 

legislative  divorce^  in  the,  §§202,  203 
CONSTRUCTIVE  SERVICE 

effect  of,  as  to  right  to  alimony,  '§33 
conflict  of  authority  as  to,  §31 
custody  of  minor  children,  §34 
property  rights  when  decree  granted  on,  §32 
remarriage  of  defendant,  §34 

jurisdiction  as  to,  §29 
CONTRACT 

capacity  to  make  a  marriage,  §42 

husband  not  liable  for,  of  wife,  §83 
CONTRACT  OF  MARRIAGE 

see  Marriage 

definition  of,   §40 

distinguishment  of,  from  other  contracts,  §5 
CONTRACTS  OF  MARRIED  WOMEN 

common  law  rule  as  to,  §158 

constitution  and  statute  as  to,  §§159,  160 

effect  of  the  statute  as  to,  §161 

executory,  capacity  to  make,  §163 

husband  jointly  in,  §172 

statutory  provision,   §160 
CONVEYANCE 

each  to  the  other,  §§88.  184 

husband  and  wife  by  entirety  make,  §186 

husband  to  wife,  §185 
COSTS 

affidavit  of  disbursements  as  to,  §499 

taxation  of,  §499 

wife  entitled  to,  when,  §339 
COUNTY  CLERK 

duties  of,   in  relation  to  marriage  license,   §59 
certificate  of  marriage,  §56 
public  record,  §59 

fee  of,  for  services,  §59 
COVENANTS 

married  women  make,  §181 
CREDITORS 

claims  of,  against  homestead,  §137 

wife's  estate  for  husband's  debt,  §167 
CRIME 

conviction  of,  as  affecting  credibility  of  witness,  §462 

evidence  of  marriage  in  trial  for  a,  §56 
CROSS-BILL 

answer  separate  from,  should  not  be  filed,  §420 
CRUELTY 

see  Extreme  Cruelty 


620  INDEX  TO    THE   TEXT 

CURTESY 

tenancy  by,  §§90,  186,  374 
DAMAGES 

action  for,  barring  marriage,  §387 

measure  of,  withholding  dower,  §119 
DEBTS 

separate  business  of  married  women  to  make,  §l73 
DECREE 

amendments  to,  §466 

bed  and  board,  §327 

consent  of  parties,  §366 

discharging  satisfaction  of,  §4.69 

distinction  between  decree  of  divorce  and  decree  of  nullity,  |209 
-  enforcement  of,  §470 

enrollment  of,  when,  §468 

marriage  affirmed  or  annulled  by,  §209 

partition,  effecting  dower,  §101 

preparing  and  settling,  §466 

recording  of,  in  register   of  deeds'  office,   §468 

sale  of  real  estate  on,  §470 

settling  and  signing  of,  §466 
DECREE  OF  DIVORCE 

effect  of,  same  as  in  state  where  rendered,  §25 

faith  and  credit  cause  of  federal  constitution  as  to,  §24 

provisions  of,  in  lieu  of  dower,  §374 

recording  of,  in  register  of  deeds  office,  when,  §374 

remarriage  may  be  forbidden  in,  when,  §372 

unnecessary,  when,   §277 

valid  in  state  where  rendered,  conclusive  in  all  other  states,  §25 
DEEDS 

husband  not  joining  in,  §§178,  381 

land  owned  by  husband  or  wife  as  to,  §88 
DEFAULT 

answer  in,  lacking,  §415 

defendant  not  appearing  as  to,  §414 

entering  of,  §415 

setting  aside  of,   §416 
DEFENDANT 

appearance  of,  how  made,  §410 

default  of,  §414 

domicile  of,  §392 

notice  of  all  proceedings  served  on,  after  appearance,  §413 

party  against  whom  application  is  made  should  be  designated  as 

§391 
DELAWARE 

causes  for  divorce  in,  §230 
DEMURRERS  AND  PLEAS 

abolishment  of,   §412 
DENOMINATIONAL  RIGHTS 

Quakers  as  to,  in  ceremony,  §53 
DESERTION 

condonation  of,  §312  ,_? 

constructive,  when,  .§308  i 

husband  and  wife  in  same  house  as  to,  §310 
justifiable,  when,  §305 


INI»I:X  r«>  TIII:  TI.VI  621 

DESERTION— (Continued). 

punishment  of  husband  for  desertion,  |388 
refusal  of  cohabitation,  during,  §311 

following  husband  may  be,  §313 

sexual  intercourse  may  be,  §315 
separation  not  always,   §307 

mutual  consent  in,  is  not,  §309 
statutory  period  of,  §305 
support  will  not  excuse,  §314 
DISCLOSURE  ON  OATH 

husband  may  be  required  to  make  of  property  which  came  to 

him  by  the  marriage,  §346 
DISTRICT  OF  COLUMBIA 

causes  for  divorce  in,  §231 

DIVORCE  / 

adultery  as  to,  §283 

ante-nuptial  impotency  not  grounds  for,  when,  §291 
causes  for,  and  procedure  in  State  of 

Alabama,  §223 

Alaska,  §224 

Arizona,    §225 

Arkansas,   §226 

California,  §227 

Colorado,   §228 

Connecticut,  §229 

Delaware,   §230 

District  of  Columbia,  §231 

Florida,  §232 

Georgia,  §233 

Guam,  §234 

Hawaii  Ter.,  §235 

Idaho,  §236 

Illinois,  §237 

Indiana,  §238 

Iowa,  §239 

Kansas,  §240 

Kentucky,  §241 

Louisiana,  §242 

Maine,  §243 

Maryland,  §244 

Massachusetts,  §245 

Michigan,  §246 

Minnesota,   §247 

Mississippi,  §248 

Missouri,   §249 

Montana,  §250 

Nebraska,   §251 

Nevada,  §252 

New  Hampshire,  §253 

New  Jersey,  §254 

New  Mexico,  §255 

New  York,  §256 

North  Carolina,  §257 

North  Dakota,  §258 

Ohio,   §259 


622  INDEX   TO   THE   TEXT 

DIVORCE—  ( Continued ) . 

Oklahoma,  §260 

Oregon,  §261 

Pennsylvania,  §262 

Porto  Rico,   §263 

Rhode  Island,  §264 

South  Carolina,  §265 

South  Dakota,   §266 

Tennessee,    §267  » 

Texas,  §268 

Utah,  §269 

Vermont,    §270 

Virginia,  §271 

West  Virginia,  §272 

Wisconsin,   §274 

Wyoming,  §275 
conflict  of  laws  as  to,  §23 
decrees  for,  by  consent  will  not  be  entered,  §366 

unnecessary  when,  §277 
domicile  for  purpose  of,  §218 
dower  effecting,  §351 

effect  of,  on  title  of  land  held  by  husband  and  wife,  §93 
impotency  as  grounds  for,  §292 
judicial,  of  marriage,  §204 
jurisdiction  in,  cases,  §215 
legislation  on  subject  of,  marriage  and,  §201 
local  legislation  as  to,  §199 
marriage  after,  §19 
marriages  void  without,   §207 
party  applying  for,  plaintiff,  §391 
physical  incompetence  as  to,  §291 
subject  of,  §198 
suit  for,  not  a  proper  proceeding  to  secure  accounting  for  wife's 

property,  §343 

third  persons  cannot  be  made  parties  to  suit  for,  §343 
tribunals  in  matters  of,  §200 

DIVORCE  AND  ANNULMENT  OF  MARRIAGE 
jurisdiction  of  court  of  chancery  in,  §276 
DIVORCE  CASES     ' 

argument  of,  §465 
fee  of  prosecuting  attorney  in,  §372 
injunctions  in,  §442 
DIVORCE  FROM  BED  AND   BOARD 

absolute  divorce  granted  when,  §§328,  330 
court  may  revoke  decree  of,  when,  §369 
decree  of,  when,  §327 

effect  of,  on  wife's  property  and  obligations,  §380 
extreme  cruelty  as  grounds  for,  §331 
purpose  of  the  statute  regarding,    §329 
refusal  of  husband  to  support  wife  a  cause  for,  §335a 
support  when  decree  of,  denied,  §369 
DIVORCE  LAWS  OF  DIFFERENT  COUNTRIES 
British  Empire,   §211 
Canada,  §212 
United  States,  §213 


INDEX   TO   THE   TEXT 

DOCKET 

motions  kept  In  a,  §494 
DOMICILE 

absence  as  affecting,  §221 

bill  should  state,  if  known,  §392 

change  of,  §219 

definition  of,  §216 

divorce  as  to,  §217 

idiot  has  same,  as  his  legal  guardian,  §219 

jurisdiction  governed  by,  §§28,  214,  215 

law  fixes,  of  wife  as  that  of  husband,  §217 

legal  ability  to  require  new,  §219 

minors,  idiots  and  lunatics  cannot  acquire  a  new,  §219 

person  can  have  but  one,  at  same  time  for  same  purpose,  §216 

place  of  marriage  not  controlling  as  to,  §215 

proof  of,  §220 

residence  and,  not  convertible  terms,  §216 

intentions  must  both  be  proved  to  establish,  §219 
test  of  jurisdiction  as  to,  in  divorce  matters,  §215 
things  necessary  in  a  requirement  of  new,  §219 
what  constitutes,  §216 

wife  may  acquire  new,  when  abandoned  or  forced  to  leave  hus- 
band, §217 
DOWER 

ante-nuptial  jointure  affecting,   §108 
assent  to  barring,  §109 

•    assignee  of  widow  cannot  bring  action  before  assignment  of,  §98 
assignment  of,  as  bar,  §§103,   122 

ejectment  as  to,  §98 
award  of  money  in  lieu  of,  §131 
barring  of,  of  insane  and  other  incompetent  persons,  §124 

minor,  §130 

collusive  recovery  of,  §123 

commissioners  appointed  by  probate  court  to  set  off,  §104 
contents  of,  §95 
damages  where,  is  withheld,  §118 

heir  has  alien  land,  §121 
divorce  affecting,  §351 
ejectment  for,  §98 

exchange  of  land  affecting  widow's,  §76 
incompetent's  petition  to  bar,  §125 
land  aliened  by  husband  as  to,  §101 

liability  of  widow  to  contribute  from  her,  to  pay  portion  of  in- 
terest accruing,  §98 
lunatics',  remains  same  as  it  was  when  adjudged  non  compos 

mentis,  §219 

measure  of  damages  for  withholding,  §419 
mortgaged  laud  as  to,  §98 
new  assignment  of,  if  widow  Is  evicted,  §114 
partition  proceedings  affecting,  to  which  claimant  is  not  a  party, 

§107 
proceedings  to  assign,  by  probate  court,  §103 

wife  was  not;  a  party  will  not  cut  off  her  right  of,  §101 
release  of,  procured  by  fraud,   §107 


624  INDEX   TO   THE   TEXT 

DOWER—  ( Continued  ) . 

right  of,  claimed  by  two  or  more  widows,  §132 
non-residents  and  aliens  as  to,  §115 

sale  of  land  on  execution  against  husband  will  not  bar,  §107 

sale  under  decree  of  partition  will  not  cut  off  wife's,  §101 

taxes  paid  from,  in  proportion,  §116 

tax-title  will  cut  off  widows'  right  of,  §107 

transfer  of,  same  as  any  other  life  estate  after  assignment,  §98 

widow's  rights  of,  §96 

assignment  of,  §103 

interest  in  surplus  after  sale  on  mortgage  foreclosure,  §99 

widow  as  to  her,  under  no  obligations  to  await  administration 
proceedings,  §103 

wife's  paroled  agreement  to  release,  not  valid,  §107 

wife's  right  to,  upon  divorce,  based  upon  statute,  §351 

woman  endowed  with,  liable  for  waste  committed,  §118 

maintenance,  of  house,  etc.,  §116 
DOWER  IN  LAND  NOT  SEVERABLE 

widows,  may  be  assigned  out  of  rents,  issues  and  profits,  §105 
DRUNKENNESS 

cause  for  divorce,  §317 

constant  and  continuous,  §318 
DUE  PROCESS   OF  LAW 

meaning  of,  within  constitution,  §445 

statutory  provisions  as  to,  §445 
DUTY  OF  MAGISTRATE  OR  CLERGYMAN 

fill  out  certificate  and  return  to  county  clerk  is  the,  §60 
EARNINGS 

common  law  rule  as  to  wife's,  §86 

right  of  married  woman  to,  §86 

statutory  provisions  as  to  wife's,  §85 
EJECTMENT 

dower  as  to,  §98 
ELECTION 

jointure   made  for   benefit   of   intended   wife   as   to,    §111 

provision  by  will  of  husband  for  wife  to  make,  §112 

what  constitutes,  §113 

widow  must  make  within  one  year  after  death  of  husband,  §114 
ENCUMBRANCES 

husband  places,  on  wife's  property,  §87 

injunction  restrains,  §441 
ENROLLMENT 

certificate  of,  §468 
ENTIRETY 

statutes  relating  to,  §§90,  186,  374 

survivorship  in  land  held  by,  §90 
EVIDENCE 

adultery  charge  must  be  proved  by  competent,  §284 

certificate  of  marriage  as,  §54 

charge  of  adultery  may  be  proved  by  circumstantial,  §284 

court  may  extend  time  for  settling,  for  appeal,  §482 

extreme  cruelty  effected  by*  §332 

license  for  marriage  as,  §54 

method  of  settling,  for  review,  §483 


IM'i:\    'in    THE   TEXT  625 

E  VI DENCE—  ( Contin  ued ) . 

reference  to  take,  §432 

reputation  not  sufficient  for,  {284 

settling,  for  appeal,  §482 

taking  of,  §431 
EXECUTION 

collection  of  alimony  of,  §358 

levy  on,  as  to  homestead,  §147 

sale  of  land  by,  aB  to  barring  dower,  §107 
EXECUTORY  CONTRACTS 

married  women  in,  §163 

competency  of,  §165 
EXEMPTION 

death  of  husband  as  to,  §142 

definition  of,  §145 

equitable  interest  as  to,  §137 

object  of,  §135 

purchase  money  mortgage  as  to,  §146 

sale  for  taxes  as  to,  §150 

sale  on  execution  as  to,  §134 
EXTREME  CRUELTY 

acts  constituting,  §333 

acts  not  amounting  to,  §334 

condonation  of,   §335 

evidence  to  establish,  §332 
FAILURE  TO  SUPPORT 

what  constitutes,   §335a 

when  justifiable,  §335a 

when  not  justifiable,  §335a 
FELONY 

wife's  desertion  constitutes,  when,  §389 
FLORIDA 

causes  for  divorce  in,  §232 
FORCE 

marriage  procured  by,  §278 
FOREIGN  DIVORCE 

interstate  comity  in,  §35 

non-recognition  of,  where  no  personal  service  is  had,  §36 

validity   of,    as    dependent    upon    jurisdiction  'over    defendant, 

§§27,  39 
FORGIVENESS  AND  CONDONATION 

effect  of,   §368 
FRAUD 

marriage  procured  by,  §278 
GEORGIA 

causes  for  divorce  "In,  §233 
GOVERNMENT 

marriage  controlled  by,  §6 
GROUNDS  FOR  DIVORCE 

see  Divorce 
GUAM 

causes  for  divorce  in,  §234 
GUARDIAN 

consent  of,  to  marriage,  §11 

jointure  of,  with  husband  in  conveyance,  §128 


626  INDEX  TO   THE   TEXT 

HABITUAL  DRUNKENNESS 

ante-nuptial  habit  relating  to,  §321 
condonation  of  offense  oft  §322 

constant  and  continuous  drunkenness  not  necessary  to  consti- 
tute, §318 
definition  of,  §317 
occasional    indulgence   in   intoxicating   liquor   not   sufficient   to 

establish,  §319 

period  of  indulgence  in  liquors  as  to,  §320 
HAWAII 

causes  for  divorce  in,  §235 
HEARING 

compelling  attendance  of  witnesses  on,  §456 
court  may  require,  §413 
cross-examination  of  opposite  party;  §455 
jury  trials  on,  in  divorce  cases,  §452 
notice  of,  not  necessary,  §454 
petition  to  bar  dower  of  incompetent  as  to,  §127 
proofs  on,  how  taken,   §453 
supreme  court  as  to,  §494 
HEIRS 

payment  of  dower  by,  §100 

widow  may  occupy  with,  if  they  do  not  object,  §106 
HOMESTEAD 

abandonment  of,  what  constitutes,   §138 

absence   from,   not  necessarily   abandonment,    §141 

alienation  of,  §140 

report  of,  §155 

claims  of  creditors  against,  §137 
confirmation  of  report  as  to,  §156 
court  to  fix  location  and  description  of,  §154 
exemption  of,  after  death  of  husband,  §142 
equitable  interest,   §137 
purchase  money  mortgage,  §146 
sale  for  taxes,  §150 
sale  on  execution,  §134 
house  on  land  of  another  as,  §150 
land  purchased  for,  §136 

occupation  of,   under  contract,   §137 
joint  tenancy  or  tenancy  in  common  as,   §138 
legislature  cannot  add  to  or  take  from,  constitutional  provisions 

as  to,   §144 

lot  with  no  dwelling  house  thereon  may  be,  §136 
mechanics'  liens  as  to,  §139 
mortgage  of,  lawfully  obtained,  §146 
new  appraisal  of,. when,  §158 
object  of  exemption  of,  §138 
officer  to  make  survey  of,  §148 
ownership  and  occupancy  of,  §135 
proceedings  on  confirmation  of  report,  as  to,   §157 
right  of  widow  to,  when   no  children,   §143 
sale  of,  after  survey,  §149 

rights  of  deceased  person,  §153 

probate  court  orders,  to  pay  debts  and  expenses,  §153 
selection  of,  when  execution  levy   is  made,   §147 


IM'i:\    TO   THE   TEXT  627 

HOMESTEAD—  ( Continued) . 

selling  of,  for  surplus,  §152 

statutory  definitions  of,  and  exemptions,  §145 

title  of,  in  fee  not  necessary,  §137 

what  constitutes,   §134 
HOMESTEAD  RIGHTS  OF  WIFE  OR  WIDOW 

constitutional, provision,  §133 
HUSBAND 

abandonment  of  wife  by,  §378 

agency  of,  for  wife,  §166 

consent  of,  to  sale  of  wife's  property,  §182 

conveyance  by,  of  undivided  one-half  interest  to  wife,  §185 

desertion  of,  by  wife,  §379 

duty  of,  to  support  wife,  §169 

encumbrance  by,  on  wife's  property,  §87 

enforcement  of,  to  support  of  wife,  §383 

liability  of.  on  suit  on  contract  made  by  wife,  §83 

materials  furnished  by,  used  on  land  of  wife,  §168 

petition  by  wife  to  compel  support  by,  §384 

punishment  of,  for  desertion,  §388 

right  of,  to  alimony  out  of  wife's  property,  §377 
creditors  of,  as  against  the  wife,  §167 
land  of  deceased  wife,  §394 

wife's  domicile  same  as,  §217 
HUSBAND  AND  WIFE 

conveyance  of,  to  or  for  each  other,  §184 
directly  to  each  other,  §88 

determination  by,  prior  to  marriage  as  to  property,  §84 

land  held  jointly  by,  §89 

legitimacy  of  issue,   §72 

liability  of,  on  joint  note,  §165 

mutual  property  rights  of,  §87 

relations  of,  changed  by  modern  legislation,  §78 

tenants  in  common  results  to,  upon  being  divorced,  §342 

unity  of,  at  common  law,  §78 
IDAHO 

causes  for  divorce  in,  |236 
IDIOT 

domicile  of,  §219 
ILLEGAL  MARRIAGE 

effect  of,  §21 
ILLINOIS 

causes  for  divorce  in,  §237 
IMPOTENCY 

grounds  of,  for  divorce,  §292 

marriage  voidable  only  for,  §296 

refusing  means  of  cure  for,  §295 
IMPRISONMENT 

effect  of,  on  marriage,  §281 
INCESTUOUS  MARRIAGE 

effect  of,  on  issue  of  marriage,  §§16,  17 

invalidity  of,  as  common  law  marriage,  §71 

prohibited  of,   §17 

validity  of,  when,   §16 

void,  or  voidable,  when,  |17 


628  INDEX  TO   THE   TEXT 

INCUMBRANCY 

husband  places,  on  wife's  property,  §87 

injunction  restrains,  §441 
INDETERMINATE  SENTENCE 

effect  of,  §301 
INDEX 

county  clerk  to  keep  an,  of  marriages,  §56 
INDIANA 

causes  for  divorce  in,  §238 
INDIAN  CUSTOMS 

marriages  between  members  of  Indian  tribes  as  to,  §70 
INJUNCTION 

applications  for,  what  to  contain,  §441 

object  of,  in  divorce  cases,  §442 

restraining  threatened  injury  by,  §442 

sale  or  incumbrance  of  property  by,  §441 

who  to  allow,   §442 
INJURY 

restraint  of  threatened,  by  injunction,  §442 
INTENTIONS 

domicile  as  to,  §219 
INTERSTATE  COMITY 

foreign  divorce  as  to,   §35 

limited  recognition  of,  §35 

rule  laid  down  in  Atherton  v.  Atherton 
federal  court  as  to,  §39 
Haddock  v.  Haddock  as  to,  §39     \ 
Pennsylvania  as  to,  §37 
South  Carolina  as  to,  §38 

validity  of  foreign  divorce,  §§27,  39 
INTOXICATING  LIQUORS 

occasional  indulgence  in,  §319 

period  of  indulgence  in,  §320 
IOWA 

causes  for  divorce  in,  §239 
ISSUE 

framing  an,  §449 
JOINTURE 

election  by  intended-wife  as  to,   §111 

land  held  by  husband  and  wife  in,  §89 

married  woman  liable  in,  164 
JUDICIAL  DIVORCE 

dissolution  by,  of  the  marriage  tie,   §204 
JURISDICTION 

act  constituting  grounds  for  divorce  will  not  confer,  §215  / 

annulment  of  marriage,   §276 

appearance  of  defendant  as  to,  §30 

conflict  of  laws  as  to,  §326 

constructive  service  as  to,  §29 

court  of  chancery  has,  in  actions  for  divorce,  §390 

divorce  suit  as  to,  §390 

domicile  of  both  parties  and  state  of  form  confer,  §§28,  214,  215 
neither  parties  in  state  of  forum,  §29 

one  party  in  state  of  forum,   personal  service  on  other 
party,  §30 


IM»i:.\    TO   THE   TKXT  '._"' 

JURISDICTION— (Continued). 

foreign  divorces  as  to,  §27 

matters  of  divorce,  §200 

place  of  marriage  not  controlling,  as  to,  §215 

residence  of  parties,    §336 
JURY  TRIALS 

divorce  cases  in,  §452 
KANSAS 

causes  for  divorce  in,  §240 
KENTUCKY 

causes  for  divorce  in,  §241 
LAND 

deed  to,  of  husband  and  wife,  §88 

effect  on,  held  by  husband  and  wife,  §93 

homestead  as  to,  §§136,  137,  138,  150 

widow's  dower  aB  to,  §101 
LAND  CONTRACTS 

survivorship  in,   §92 
LEGISLATION 

constitution  as  to,  §144 

marriage  and  divorce  as  to,  §201 

modern,  as  to  husband  and  wife,  §§20,  78 
LEGISLATIVE  DIVORCES 

constitutional  provisions  concerning,   §203 

prohibition  of,  in  most  of  the  states,  §202 

validity  of,  unless  prohibited  by  constitution,  §202 
LEGITIMACY  OF  ISSUE 

both  parents  having  former  husband  or  wife  as  to,  §72 

legal  marriage  effecting,  §277 
LEVY 

execution  as  to,  on  homestead,  §147 
LICENSE 

blank  form  of,  to  be  returned  to  county  clerk,  §59 

contents  of,  §57 

evidence  of  marriage  in,  §54 
LIEN  FOR  ALIMONY 

enforcement  of,  §§352,  357 

suit  to  foreclose,  §359 
LIFE  ESTATE 

assignment  of,  §98 
LIMITATION  OF  COURT 

effect  on  decree  for  alimony,  §349 
LIMITED  DIVORCE 

defense  to  criminal  charge  of  adultery  or  bigamy,  §205 

moral  effects  of,  §206 
LOT 

homestead  as  to,  §136 
LOUISIANA 

causes  for  divorce  in,  §242 
LUNATICS 

domicile  of,     219 
MAINE 

causes  for  divorce  in,  §243 


630  INDEX    TO   THE   TEXT 

MAINTENANCE  OF  HOME 

liability  of  dower  to  pay  for,  §116 
MANDAMUS 

publisher  entitled  to  a,  to  permit  reporters  to  examine  records, 

§59 
MARRIAGE 

annulment  of,  with  evidence,  clear  and  convincing  of  illegality, 

§280 

fraud  or  duress,  §77 
assent  of  both  parties  essential  to,  §43 
certificate  of,  as  evidence,  §54 

county  clerk  to  record,  §56 

cohabitation  no  presumption  of  validity  of,  §47 
competency  of  parties  to,  §46 
conflicting  presumptions  as  to  validity  of,  §68 
conflict  of  laws  as  to,  §§14,  69 
consent  essence  of,  §10 

obtaining  of,  by  force  or  fraud,  §208 

parents  or  guardians  as  to,  §11 
contract  of,  §5 

contractual  relation  means  the  actual  forming  of  the,  §43 
decrees  annulling  or  affirming,   §209- 
definition  of,  §§1,  43 

determination  of  property  rights  prior  to,  §84 
effect  of  another  spouse  living,  §45 

imprisonment  for  life,  §281 

incestuous  and  polygamous,  §16 

prohibited  period,  §20 

property  rights  of  parties,    §13 
evidence  of,  in  criminal  action,  §56 

other  than  of  record,   §56 
force  or  fraud  in  procuring,  §278 
form  required  of  ceremony  of,  §49 
incestuous,  prohibited,  §17 

Indians  contracting,  §70 
issue  of  void,  deemed  legitimate,  §72 
laws  of  British  Parliament  relating  to,  §6 
legal  impediment  as  to,  §45 

bar  to  actions  for  damages,  §387 
legitimacy  of  issue  of,  §277 
license  for,  as  evidence,  §54 
mode  of  solemnizing,  §47 

England,  §7 

Scotland,  §8 

United  States,  §9 
modern  legislation  as  to,  §22 
more  than  a  civil  contract,  §73 

obligations  of,  depend  upon  law  written  or  unwritten,  §73 
place  of,  not  controlling,  §215 
presumptions  of  validity  of,  §67 
previous  chastity  not  a  requisite  to  validity  of,  §43 
primitive  ceremonies  of,  §4 
public  policy  and  morality  as  to,  §15 
purpose  of  statutory  definition  of,  §74 


INKKX   TO    THE    TEXT  631 

MARRIAGE— (Continued). 

record  of,  §55 

second,  after  divorce,  §19 

statutory  definition  of,  §43 

validity  or  invalidity  of,  §72,  207 

foreign,  how  determined,  §14 

incestuous,  §17 

law  of  state  where  solemnized  governs,   §47 

one  of  the  effects  on,  of  insanity  of  on  the  parties,  §72 

valid  where  celebrated,  is  valid  everywhere,  §§14,  69 

void,  when  between  persons  prohibited  by  statute.  §72 

void,  without  divorce,  when,   §277 

when  voidable  only,  §75 

who  may  annul  voidable,  §76 

who  may  ask  for  annulment  of  voidable,  §18 

who  may  solemnize,  §47 

who  capable  of  contracting,  §42 

witnesses  to,   §49 
MARRIAGE  CEREMONIES 

one  of  the  parties  to  be  examined  on  oath,  §48 
MARRIAGE  CERTIFICATE 

filing  of,  with  county  clerk,  §55 
MARRIAGE  CONTRACT 

agreement  to  enter  into  a  certain  status  or  relation,  §41 

definition  and  nature  of,  §40 

obligations  of,  fixed  by  law,  §41 
MARRIAGE  LICENSE 

blank  form  of,  to  be  returned  to  county  clerk,  §59 

contents  of,  §57 

issuance  of,  by  county  clerk,  §57 
non-residence  as  to,  §57 

public  record  of,  §59 
MARRIAGE  RECORD 

keeping  of,  §55 
MARRIAGES  TO  PROTECT  REPUTATION 

application  for  license  in  case  of,  §64 

inspection  of  record  when,  §463,  65 

judge  of  probate  may  issue  license  in  case  of,  §63 

papers  relating  to,  must  be  executed  in  duplicate,  §64 

penalties  for  divulging  or  publishing  facts  concerning.   §66 

performance  of  marriage  in  case  of,  §63 

record  of,  to  be  kept  in  private  register,  §§63,  65 

inspection  of,  §65 
MARRIED  WOMAN 

actions  by  and  against,  §82 

acts  relative  to  rights  of,  §80 

capacity  of,  to  make  executory  contract,  §163 

contract  of,  jointly  with  husband,  §172 

common  law  rule  as  to,  §158 

constitution  and  statutes  as  to,  §§159,  160 

covenants  on  the  part  of,  §181 

debts  incurred  by,  in  separate  business,  §173 

disposal  of  separate  real  estate  of,  what  law  governs,  §179 

earnings  of,  §86 

endorsement  by,  of  note  due  to  her,  §164 


632  INDEX    TO   THE   TEXT 

MARRIED  WOMAN— (Continued). 

executory  contracts  of,  §163 

husband  may  act  as  agent  of,  §173 

liability  of,  on  joint  contract,   §164 

note  by  herself  and  husband  jointly,  §165 
partner  with  husband  as  to,  §164 

mortgage  by,  of  separate  property  to  secure  debt  of  another,  §175 

note,  of,  for  debt  of  another,  §175 

real  estate  of  ward  of,  without  husband  joining  in  deed,  §178 

right  of,  to  dispose  of  her  own  property  without  husband  join- 
ing, §§178,  381 

coming  from  another  state  or  country  without  her  hus- 
band, §379 

subscription  contract  of,  for  public  improvement,  §171 

test  of  competency  of,  to  make  executory  contract,  §165 

trustee  for,  may  convey  to  her,   §81 
MARYLAND 

causes  for  divorce  in,  §244 
MASSACHUSETTS  , 

causes  for  divorce  in,  §245 
MATERIALS 

husband  furnishes,  §168 
MATRIMONIAL  CAUSES 

jurisdiction  of,  §12 
MECHANICS'  LIENS 

homestead  as  to,  §139 
MICHIGAN 

causes  for  divorce  in,  §246 
MINNESOTA 

causes  for  divorce  in,  §247 
MINOR  CHILDREN 

domicile  of,  §217 

names  and  residence  of,  should  be  stated  in  bill,  §393 

service  on,  §34 
MISSISSIPPI 

causes  for  divorce  in,  §248 
MISSOURI 

causes  for  divorce  in,  §249 
MISTAKE 

clerical,  in  decree,  §467 
MONOGAMY 

origin  of,  §2 
MONTANA  ' 

causes  for  divorce  in,  §250 
MORTGAGE 

homestead  covered  by,  §146 

land  under,  as  to  dower,  §98 

widow's  dower,  when  heir  pays,  §100 
M.ORMON  HERESY 

suppression  of,  §3 
MOTHER 

care  and  custody  of  children  by,  when,  §341 
MOTIONS 

argument  of,  §448 


IMiKX   TO   THE  TEXT 


MOTIONS—  (Continued ) . 

brief,  regarding,  §494 

classification  of,   §446 

court  granting,  when,  §447 

court  may  require  hearing  of,   §413 

days  for  hearing,  in  Supreme  Court,  §494 

docket  for,   §494 

framing  issue  and  hearing  of,  §449 

hearing  of,  when,  §448 

practice  relating  to,  in  Supreme  Court,  §493 

special,  when,  §448 

witnesses  in  open  court  on  hearing  of,  §450 
MOTION  TO  DISMISS 

making  and   filing  of,   §413 
NEBRASKA 

causes  for  divorce  in,  §25 
NEVADA 

causes  for  divorce  in,  §252 
NEW  HAMPSHIRE 

causes  for  divorce  in,  §253 
NEW  JERSEY 

causes  for  divorce  in,  §254 
NEW  MEXICO 

causes  for  divorce  in,  §255 
NEW  YORK 

causes  for  divorce  in,  §256 
NON  COMPOS  MENTIS 

dower  of,  §219 
NON  PAYMENT 

temporary  alimony  as  to,  §443 
NON-RESIDENTS 

dower  of,  §115 

marriage  of,  §57 

service  on,  §407 
NON  SUPPORT 

cause  for  divorce  for,  §335a 
NORTH  CAROLINA 

causes  for  divorce  in,  §257 
NORTH  DAKOTA 

causes  for  divorce  in,  §258 
NOTE    , 

endorsement  by  married  women,  §164 
NOTICE  OF  ARGUMENT 

manner  of  service  of,  §495 
NOTICE  OF  HEARING 

divorce  cases  as  to,  §454 

order  of,  dower  of  incompetent,  §125 
OATH 

collusion  of  parties  under,  337 
OBJECTIONS 

couft  to  rule  upon,  when,  §463 

testimony  as  to,  §§434,  464 
OHIO 

causes  for  divorce  in,  §259 


634  INDEX   fO    THE    TEXT 

OKLAHOMA 

causes  for  divorce  in,  §260 
OPPOSITE  PARTY 

cross-examination  of,  §455 
ORDER  FOR  TEMPORARY  ALIMONY  AND  EXPENSES 

contents  of,  §438 
ORDER  OF  PUBLICATION 

affidavit  for,  §408 

application  for,  how  made,  §407 

contents  of  affidavit  for,  §409 

copy  of,  to  be  served  on  absent  or  non-resident  defendant,  §407 

plaintiff  to  cause,  to  be  published,  when  and  where,  §407 
ORDERS 

distinction  between  common  and  special,  §451 
OREGON 

causes  for  divorce  in,  §261 
OWNERSHIP  OF  HOMESTEAD 

rule  as  to,  §135 
PARENT 

consent  of,  to  marriage,  §11 
PARTITION 

decree  of,  §101 

dower  as  to,  §107 
PARTNER 

married  woman  liable  to,  §164 
PARTY 

assent  of  each,  to  marriage  contract,  §43 

competency  of,  §46 

examination  of,  on  oath,  §48 

personal  service  on  either,  when,  §§30,  36 

residence  of,  as  to  jurisdiction,  §336 

supplemental  bill  as  to,  §425 

void  marriage  of  either,  is  prohibited  from  marrying,  §72 
PENALTIES 

clergyman  or  magistrate  subject  to,  for  marrying  parties  with- 
out license,  §61 

county  clerk  subject  to,  for  refusing   to  give  license,   §61 
PENNSYLVANIA 

causes  for  divorce  in,  §262 
PERMANENT  ALIMONY 

adjudication  in  bankruptcy  will  not  discharge,  §359 

amount  of,  how  ascertained,   §348 

discretion  of  court,  §349 

award  of,  is  valid  claim  against  the  estate  of  claimant  divorced1 
husband  deceased  when,  §359 

court  may  alter  decree  for,  §360 

court  may  sequester  real  and  personal   estate  of  husband  and 
appoint  receiver  thereof  to  collect,   §359 

courts  of  chancery  as  to  adherence  powers  of  granting,  §347 

decree  for  divorce  should  precede  application  for,  §358 

division  of  property  in  lieu  of,  §358 

divorce  necessary  before  court  may  decree,  to  wife,  §347 

enforcement  of  lien  for,  §357 

execution   to  collect,   §358 


INDEX   TO   Till.    Ti:\T  635 

PERMANENT  ALIMONY— (Continued). 

gross  sum  may  be  decreed  as,  §350 

judge  who  hears  the  evidence  should  fix  the  amount,  §347 

lien  on  real  and  personal  estate  to  secure  payment  of,  §352 

limitation  of  power  of  court  toward,  §349 

power  to  grant,  is  statutory,  §347 

presumption  as  to  Jurisdiction  to  grant,  §347 

testimony  as  to  amount  of,  when  and  how  taken,  §350 

restoration  of,  to  wife,  §343 
PERSONAL  DIVORCE 

foreign  divorces  as  to,  §36 

party  beyond  jurisdiction  entitled  to,  §30 
PERSONAL   PROPERTY 

doctrine  of  supplemental  bill  as  to,  §81 
PETITION 

wife  makes,  for  support,  §384 
PETITION  TO  BAR  DOWER  OF  INCOMPETENT 

appearance  and  answer  of,  §127 

contents  of,  §125 

order  of  notice  of  hearing  on,  §126 

proceedings  at  hearing  on,  §127 
PHYSICAL  INCOMPETENCY 

divorce  for,  §291 
PLAINTIFF 

party  applying  for  divorce  should  be  designated  as,  §391 
PLEADINGS 

amendments  to,  when  and  how  made,  §417 
PLEAS 

abolishment  of,  §412 
POLYANDRIA 

definition  of,  §3 
POLYGAMOUS  MARRIAGE 

invalid,  though  valid  where  solemnized,  §71 

validity  of,  §16 
POLYGAMY 

effect  on  marriage  in  case  of,  §16 

definition  of,  §3 

suppression  'of  mormon   heresy  as  to,   §3 
PORTO  RICO 

causes  for  divorce  in,  §263 
PRESUMPTION 

conflicting,  as  to  marriage,  §68  * 

jurisdiction  to  grant  alimony  as  to,  §347 

validity  of  marriage  as  to,  §367 
PRIMITIVE  MARRIAGE 

patriarchal  families  in,  largely  polygamous,  §3 
PRINTING 

allowance  of  expense  of,  §499 

type  to  be  used  in,  in  brief  and  records,  §496 
PROFITS  AND  RENTS 

widow's  right  to,  §105 
PROOF 

domicile  as  to,  §220 

taking  of,   §453 


636  INDEX   TO   THE   TEXT 

PROPERTY 

division  of,  in  lieu  of  alimony,  §358 
PROPERTY  RIGHTS  OF  HUSBAND  AND  WIFE 

common  law  rule  as  to,  §79 

decree  granted  a's  to,  §32 

mutuality  of,  §87 
PROSECUTING  ATTORNEY 

appearance  of,  in  divorce  cases,  §472 

compensation  for  services  of,   §477 

court  may  order  appearance  of,  §372 

disqualification  of,  §372 

duty  of,  .when  served  with  summons,  §474 

employment  of,  by  either  party  when  retained,   §476 

fee  of,  in  divorce  cases,  §372  » 

reasons  for  requiring  appearance  on,  §471 

service  of  summons  on,  §372 

subjects  to  be  investigated  by,   §475 
PUBLICATION 

order  for,  §407 
PUBLIC  IMPROVEMENT 

wife's  subscription  for,  §171 
PUBLIC  POLICY 

marriage  effected  by,  §15 
PUBLIC  RECORDS 

inspection  of,  §59 
PUBLISHER 

mandamus  for,  to  examine  records,  §59 
PURCHASE  MONEY  MORTGAGE 

survivorship  in,  §92 
QUAKERS 

denominational  rights  of,  §53 
REAL  ESTATE 

disposal  of  separate,  §179 

notice  of  sale  of,  §179 

sequestration  of,  §359 

wife  entitled  to,  when,  §342 
RECEIVER 

court  appoints,  when,  §359 
RECORD 

evidence  of  marriage  other  than  of,  §56 

mandamus  for  publisher  to  examine,  §59 

printing  of,  §499 

provisions  relating  to,  §496 
RECORD  OF  MARRIAGES 

contents  of,  §§55,  56 

inspection  of,  §§63,  65 

prima  facie  evidence  of,  in  all  courts  and  proceeding,  §62 

public,  should  be  open  for  inspection,  §59 
REFERENCE 

evidence  in,  §432 
REHEARING 

circuit  court  rule  relating  to,  §467 

clerical  mistakes  in  decree  not  ground  for,  §467 

rule  relating  to,  §500 


INDKX    To    THE   TEXT  637 

RELEASE 

fraud  may,  dower,  §107 
REMARRIAGE 

constructive  service  on  defendant,  §34 

prohibition  of,  for  a  period,  §20 
RENTS  AND  PROFITS 

widow's  right  to,  §105  » 

REPORT 

confirmation  of,  §156 
RESIDENCE 

domicile  and,  distinguished,  §216 

jurisdiction  conferred  by,  §336 
RHODE  ISLAND 

causes  for  divorce  in,  §264 
SALE  OF  REAL  ESTATE 

execution,  barring  dower,  §107 

homestead  as  to,  §§149,  153 

notice  of,  §470 
SECRETARY  OF  STATE 

licenses,  certificates  and  books  of  registration  supplied  by,  for 

county  clerk,  §57 
SEPARATION 

mutual  consent  in,  §309 
SERVICE  ' 

see  Constructive  Service 

court  may  direct  manner  of,  when,  §492 

notice  of  argument,  §495 

personal,  when,  §36   . 
SETTING  ASIDE 

default  as  to,  §416 
SEXUAL  INTERCOURSE 

refusal  of,  §315 
SOUTH  CAROLINA 

causes  for  divorce  in,  §265 
SOUTH  DAKOTA  , 

causes  for  divorce  in,  §266 
SPECIAL  MOTIONS 

hearing  §448 
SPOUSE 

another,  living,  §45 
STATUTES 

alimony,  §347 

definition  of  marriage  in,  §§43,  74,  160 

contracts  of  married  women,  §159 

due  process  of  law,  §445 

effect  of,  married  women,  §161 

wife's  earnings,  §85 
SUBSTITUTED  SERVICE 

applications  for,  how  made,  §407 
SUIT  FOR  DIVORCE 

jurisdiction  of  court  in,  §390 
SUIT  ON  CONTRACT 

liability  of  husband  for,  of  wife,  §83 


638 

SUMMONS 

clerk  to  issue,  upon  filing  of  bill  in  payment  of  entry  fee,  §405 

form  and  contents  of,  §405 

service  of,  when  and  how,  §406 

prosecutor  as  to,  §372 
SUPPLEMENTAL  BILL 

allegations  of,  §426 

answers  to,  §429 

defenses  to,  §428  ' 

evidence  to  support,  §430 

leave  to  file,  how  obtained,  §427 

nature  of,  §424 

parties  to,  §425 
SUPPLEMENTAL  PLEADINGS 

contents  and  allegations  of,  §423 
SUPPORT 

decree  for  non,  §335a 

wife  entitled  to,  §§169,  383 
SUPREME  COURT 

hearing  of  motions,  §494 

practice  in,  §493 
SUPREME  COURT  CLERK 

taxation  of  costs  by,  §499 
SURPLUS 

homestead  as  to,  §152 
SURVEY  OF  HOMESTEAD 

ofiicer  to  make,  §148 
SURVIVORSHIP 

doctrine  of,  in  a  land  contract,  §92  - 
personal  property,  §91 
purchase  money  mortgage  as  to,  §92 

land  held  by  entireties  as  to,  §90 
SWORN  ANSWER 

effect  of,  §419 
TAXATION  OF  COSTS 

notice  of,  how  served,  §499 

wife  entitled  to,  when,  §339 
TAXES 

dower  effecting  payment  of,  §116 
TAX  TITLE 

dower  cut  off  by,  §107 
TEMPORARY  ALIMONY 

attachment  to  compel  payment  of,  §444 

contempt  for  non-payment  of,  §443 

execution  cannot  be -awarded  to  collect,  §358 

proceedings  to  compel  payment  of,  §443" 
TENANCIES  BY  THE  CURTESY 

husband  and  wife  in,  §94 
TENANCIES  BY  ENTIRETIES 

husband  and  wife  in,  §§90,  186,  374 
TENANCIES  IN  COMMON 

husband  and  wife,  §342 
TENNESSEE 

causes  for  divorce  in,  §267 


1\1>EX   TO  THE   TEXT  63ft 

TESTIMONY 

admissibility  of,  §463 

objections  to,  §§434,  463 

trial  court  may  rule  upon,  §464 

order  of  reference  to  a  commissioner  to  take,  §433 

parties  can  only  give,  in  open  court,  §366 
TEXAS 

causes  for  divorce  in,  §268 
TIME 

computation  of,  §491 
TITLE  OF  HOMESTEAD 

fee  as  to,  §137 
TRUSTEE 

appointment  of,  for  wife  when,  §344 

conveyance  by,  to  married  woman,  §81 

duties  of,   §345 
UNAUTHORIZED  MARRIAGE 

consent  as  to,  §51 

magistrate  or  clergyman  making,  §52 

punishment  for,  §51 
UNITED  STATES 

divorce  laws  of,  §213 
UTAH 

causes  for  divorce  in,  §269 
VALIDITY  OF  MARRIAGE 

previous  chastity  effecting,  §43 

rule  as  to,  §§14,  43,  47,  72,  207 
VERMONT 

causes  for  divorce  in,  §270 
VIRGINIA 

causes  for  divorce  in,  §271 
WASTE 

liability  of  dower  to  pay  for,  §118 
WEST  VIRGINIA 

causes  for  divorce  in,  §272 
WIDOW 

constitutional  provisions  relating  to,  §133 

election  by,  §114 

obligation  of,  to  await  administration,  §103 

occupancy  of  homestead  by,  §§106,  135,  143 

right  of,  to  support  is  a  vested  right,  §117 
assignment  of  dower,  §603 
dower  as  to,  §96 
interest  in  mortgage  sale,  §99 
WIFE 

agency  of  husband  for,  §166 

bill  of  complaint  in  name  of,  §338 

contract   of,   relating   to   separate   property,    §175 

contribution  by,  as  gift  to  husband,  §88 

costs  for,  §339 

damages  recovered  by,  for  injuries,  §87 

debts  contracted  on  credit  of  separate  estate  of,  87 : 

desertion  of,  a  felony,  §389 

domicile  of,  same  as  husband,  §217 


640  INDEX  TO   THE   TEXT 

WIFE— (Continued). 

dower  of,  upon  divorce  when,  §351 

earnings  of,  §86 

former  name  of,  may  be  restored  when,  §376 

gift  by,  to  husband,  §180 

guardians  sale  of  interest  of,  §128 

husband  not  liable  for  contracts  of,  §83 
duty  of,  to  support,  §169 

insurance  on  life  of  husband,  §85 

liability  of,  upon  any  contract  made  by  her,  §83 

land  of  deceased,  right  of  husband,  §394 

mortgage  without  signature  of,  §146 

payment  of  husband's  debts  by,  §177 

property  of,  encumbered  to  pay  alimony  to  husband,  §377 

redemption  from  judgment  creditors  suit  belongs  td,  §87 

responsibility  of,  for  family  necessaries,  §169 

restoration  of  alimony  to,  §343 
personal  estates  of,  §343 

restraint  of  liberty  of,  while  suit  is  pending,  §340 

sale  of  husband  of  property  of,  §182 

separate  estate  of,  what  constitutes,  §174 

trustee  for,  §344 
WILL 

provision  of,  relating  to  election,  §112 
WISCONSIN 

causes  for  divorce  in,  §274 
WITNESSES 

appreciation  of  nature  and  obligation  of  oath  by,  §460 

children  as,  §461 

child  under  ten  years  of  age  as  a,  §435 

compelling  appearance  of,  §456 

competency  of,   §459 

charge  of  adultery,  §284 

conviction  of  crime  as  affecting  credibility  of,  §462 

credit  of,  cannot  be  impeached,  §462 

fees  of,   §456 

hearing  of  motions  as  to,  §450 

marriage  as  to,  §49 

mode  of  adminstering  oath  to,  §458 

parties  may  be  examined  as,  §435 

penalty  for  refusing  to  appear  as,  §457 

religious  opinion  of,  §459 

rules  as  to  competency  of,  §435 

service  of  subpoena  on,  §456 

special  questions  to  be  asked  of,  §371 

warrants  for  apprehension  of  delinquent,   §457 
WOMEN 

dower  effecting,  §116 
WRITTEN  LAWS 

evidence  of,  of  foreign  countries,  §26 

obligations  of  marriage  depends  on,  §73 
WYOMING 

causes  for  divorce  in,  §275 


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